International Treaties and Their Impact on National Law
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Introduction
Modern states are inseparable from international relations. There are various motivations
for states to engage in international relations. To fulfill various As a result of their needs,
states must relate to other states or international organizations. In its development,
international relations between states and international organizations can no longer be
regulated based on international customs along with the increasing number of international
organizations. The complexity of the problems faced by the state and the subjects of
international law. Even today it is a necessity for subjects of international law to express their
relations in an international treaty.
International treaties are agreements between members of the community of nations and
aim to cause certain legal consequences (Kusumaatmaja & Agoes, 2003). Mauna (2008)
argues that international treaties are juridical instruments that accommodate the will and
consent of states or other international legal subjects to achieve common goals, the making
of which is regulated by international law and has binding legal consequences for the parties
that make it (Mauna, 2008). It is important to provide clear boundaries related to this
international agreement, because not necessarily every agreement made by the state is an
international agreement. Not necessarily every "element" outside the territory of the state can
be qualified as an international agreement.
The development of the practice of international relations has placed international treaties
as the most important source of law to regulate the rights and obligations of each subject of
international law that binds themselves in international treaties. In the Statute of the
International Court of justice (ICJ), one of the main organs of the United Nations that
functions to adjudicate international disputes between states, it is stated about the sources of
law that can be used as guidance for judges in making decisions on cases that enter the
International Court of justice or the International Court of Justice, Article 38 Paragraph (1) of
the ICJ Statute states that: "The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply: (a) international
conventions, whether general or particular, establishing rules expressly recognized by the
contesting states; (b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, [.e. that only the parties are bound by the decision
in any particular case] judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law"
(Nations, n.d.). In looking at national and international law There is a school that separates
the two laws, there are also those who group the laws in one inseparable unit. Regardless of
these theories, it would be more appropriate to see how the reality of the relationship
between the two laws.
Returning to international treaties, in principle, every country has the freedom to enter
into an agreement with any party (the principle of freedom of contract), as long as it is in
accordance with the needs of the country. If the state has bound itself in the agreement, it
will give birth to rights and obligations that must be borne. A special characteristic of
international treaties is the issue of state sovereignty which will have an impact on the
national law of the country. Sovereignty is a translation of sovereignty (English),
sovereinete (French), sovranus (Italian) which means supreme power (Ardhiwisastra, 1999).
Furthermore, Bodin states that there is no higher power that can limit the power of the State.
According to him, sovereignty contains the only power as:
•
Original, meaning not derived from some other authority.
•
Supreme, no other higher power can limit its power.
•
Eternal or everlasting (Ardhiwisastra, 1999).
•
It cannot be divided because there is only one supreme power.
•
Cannot be transferred or assigned to another entity
Based on the background description, to limit the problems to be discussed, the author
will discuss the limits and stages of making international agreements and the impact of
international agreements on national law.
Research Methods
This research study is normative juridical as the main approach, by looking at
international law and national law as rules/norms then making it a parameter to see the
implementation of these rules. The types of data used are Secondary data, which is obtained
from library data. The data collection method used in this research is document study. The
interpretation used in this writing is historical interpretation. Historical interpretation is
examining the history of law or examining international agreements in terms of the limits
and stages of making and their impact on the development of national law (Amiruddin,
2012).
Discussion
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
Limitations on International Treaty Making
Judging from history, international relations between nations in the world are only
regulated based on international customs that are considered correct and carried out
continuously. In recent decades, the increasing intensity of international relations has led to
the realization of the international community that the customs used so far in international
relations cannot be used as a reference for solving various problems that arise. Therefore, the
importance of a norm that regulates how relations in the international community in the form
of international treaties is increasingly felt (Situngkir, 2018).
In the provisions of Article 2 paragraph 1 (a) of the 1969 Vienna Convention: "treaty"
means an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation" (Nations, 1969).
The main element of an international treaty is an agreement between states. International
treaties include treaties between states and international organizations as well as treaties
between international organizations and international organizations. Not considered an
international treaty, for example, the treaty between the East India Company and Verenegde
Oost Indische Compagnie with the heads of Bumi Putera. Other examples that do not
include international treaties include agreements between a state and individuals, both
individuals and legal persons.
The subject of international law is the holder of direct rights and obligations under
international law. To qualify as a subject of international law, it is necessary to have legal
personality. This legal personality is needed to obtain legal validity as a subject and a
separate unit in international relations (Rudy, 2009).
In general, Multi-National Corporations (MNCs) are categorized as legal persons that are
equivalent to citizens of the country where the MNCs are established. Thus, only the state
has the authority to regulate the activities of MNCs. A Multi-National Company (MNC) is a
company that has its headquarters in one country and conducts its activities in the territory
of many countries. In international law, the status owned by MNCs is a private company and
is a non-governmental entity and does not have the status of an international legal person.
MNCs generally do not have rights and obligations under international law and do not have
standing to litigate at the International Court of Justice (ICJ) because, it is clearly regulated
in Article 34 paragraph (1) of the ICJ Statute, which states that only states can be parties to
cases before the Court. However, in certain instances MNCs can enter into agreements with
the government of a state by applying principles of international law or common law
principles to their transactions rather than being governed by the national law of a state
(Rambisa & Salain, 2013).
The parameters for limiting international agreements are (Agusman, 2010):
•
The agreement must be international in character (an international agreement), thus
excluding national-scale agreements such as agreements between states or local
governments of a national state.
•
The agreement must be made by the state and / or international organizations (by subject
of international law), so it does not include agreements that, although international in
nature, are made by non international subjects are not international agreements, such as
countries with multinational cooporation.
•
The treaty must be subject to the regime of international law (governed by international
law) which the International Law Commission tries to clarify into
2 (two) elements, namely: intended to create obligations and legal relations and under
international law (Agusman, 2010).
•
By looking at the restrictions above, we can now classify which treaties are international
and which treaties are only international in nature.
Stages of International Treaty Making
Treaties can be drawn up between states or governments or heads of state or government
agencies that have accreditation or authority granted by the state that sends them. The
provision is stipulated in article 7 (1) paragraphs a and b of the 1969 Vienna Convention in
the United Nations: (a) he produces appropriate full powers; or (b) it appears from the
practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full
powers (Nations, 1969).
The duties of the state representatives: "the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty"
By looking at the duties of these officials in representing the state, we can see an overview
of the process of forming international treaties:
Adoption of the text
The adoption of a treaty text is a form of consent of all countries involved in the drafting
of an international treaty, for international conferences the process of adopting the treaty
text can be carried out if two-thirds of the countries involved are reached, unless otherwise
determined by the conference.
Authentication of the text
The text of the treaty is designated as authentic and definitive by such procedures as may
be provided in the text or agreed upon by the states participating in the making of the treaty.
Consent to be bound
To be bound by a treaty, the consent of a state to be bound to the treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other agreed means.
The Impact of Ratification of International Treaties on National Law
Whether or not international law affects the state must first be seen in the role of the state
itself in international treaties. As with treaties in general, the state in an international treaty
has a role that is determined by the state itself. The 1969 Vienna Convention and the 1986
Vienna Convention divide the role of the state in international treaties into 2 (two) groups:
Theoretically, a non-party state is a state that is not party to an international treaty,
therefore a treaty does not create either obligations or rights for a third state without consent.
Functionally, international agreements are seen from the source of law, so international
agreements can be divided into two groups, namely: treaty contracts and law making treaties.
Treaty contract is an agreement such as a contract or agreement in civil law that results in
rights and obligations between the parties to the agreement only, for example border
agreements and trade agreements. Law making treaties are international agreements that lay
down provisions or legal rules for the international community as a whole, for example the
1969 Vienna Convention on the Law of International Treaties and the 1982 Convention on
the Law of the Sea (Ardhiwisastra, 2003).
In theory, there are 2 (two) views on international law, namely a view called voluntarism,
which bases the enactment of international law and even the issue of whether or not
international law exists on the will of the state, and an objectivist view that considers the
existence and enactment of international law independent of the will of the state. According
to the voluntaryist view, international law and national law are two legal units that coexist
and separate, while the objectivist view considers them as two parts of a unified legal system.
Closely related to what is explained is the issue of the hierarchical relationship between the
two sets of laws, whether they are legal instruments that each stand alone or are two legal
instruments that are essentially part and parcel of the same legal system.
From these two theories, two schools or points of view emerged that discussed this
matter. The first school was the dualism school. This school is very influential in Germany
and Italy with a very famous figure is Triepel, a leader of the positivism school from
Germany who wrote the book Volkerrecht and Landesrecht (1899) and Anzilotti, a leader of
the positivism school from Italy who wrote the book Corso di Dirrito Internazionale (1923).
according to the flow of dualism originating from the theory of the binding force of
international law originating from the will of the state, then international law and national
law are two separate legal systems or devices from one another. This is based on formal
reasons as well as reasons based on reality. This dualism is closely related to positivism
which emphasizes the element of consent from the state. Historically, the dualist view
reflects the spirit of nationalism. Among the reasons that can be put forward are the
following:
•
The two sets of laws, namely national law and international law, have different sources,
national law originates from the will of the state, while international law originates from
the common will of the state community;
•
The legal subjects of national law are individuals in both civil and public law, while the
subjects of international law are states and other entities; as a legal system, national and
international law also reveal differences in structure. The institutions necessary to
implement the law, such as international tribunals and executive organs, are not the same
as in national law.
In the literature in the United States, the problem of the relationship between these two
types of law is divided into 2 (two) categories (Agusman, 2010):
Self-executing treaty
This view has the "color" of monism. In general, a self-executing treaty may be defined as
a treaty that may be enforced in the courts without prior legislation by congress.
Non self excuting treaty
This notion has the "color" of dualism. Non self excuting treaty conversely as a treaty that
may not be enforced in the courts without prior legislative implementation.
However, the issue of self-executing treaty or non-self-executing treaty is more
appropriately studied from the substance of the international agreement itself. If the treaty
cannot be enforced in national law because it requires a national instrument, then it is certain
that the treaty is classified as a non-self-executing treaty. The issue of the need for national
instruments as a condition for the enforceability of international agreements when it comes to
the rights and obligations of individuals or citizens as subjects of national law. For example,
the Trademark Law Treaties 2006, UNCAC 2003, UN Convention Against Transorganizid
Crimes 2000, and a number of private international law produced by (HCPIL (Hague
Conference on Private International Law), UNCITRAL, and UNIDROIT (The International
Institute for the Unification of Private Law)). These treaties traditionally create rights and
obligations of states under international law, but those obligations are geared towards
creating substantive norms in national law. The enforcement area of these treaties is in the
national jurisdiction of the state involved in the international treaty, hence the need for
national legal tools to implement the international treaty.
In United States, the provisions regarding international agreements are regulated in the
Law Number 24 Year 2000. Article 10 Ratification of international agreements is done by
law if it is related to:
political, peace, defense issues,
and state security;
territorial changes or delimitation of the territory of the Republic of United States;
sovereignty or sovereign rights of the state;
human rights and the environment;
formation of new legal rules;
foreign loans and/or grants.
From the above provisions, it can be seen that if the form of ratification of an
international agreement is a law, it must be approved by the House of Representatives as the
holder of legislative power. It is not uncommon for conflicts to occur in the process of
making international agreements due to those involved in the process of making
international agreements are holders of executive power (presidents/ministers/diplomatic
representatives). For example, United States negotiators in negotiating the 1982 UN
Convention on the Law of the Sea (UNCLOS) crashed into the 1960 Perpu 4 Law on United
States Waters. To overcome this in this reform era, the principle that international
agreements must be in harmony with national law (pursuant to the respective laws and
regulations) is highly emphasized by United States in order to secure and to ensure that the
agreed international agreements remain in the corridor of national law.
In the event of a national legal vacuum, international treaties or conventions may be used
by judges as reference material. For example, the jurisprudence of the Supreme Court that
sentenced Eurico Guterres (former deputy commander of the forces fighting for integration).
In that court, the judges referred directly to the international convention, article 7 paragraph
3 of the Element of crimes of the Rome Statute on the Establishment of the International
Criminal Court. The judges also relied on the legal arguments used in the Bagilishema case
decided by the ICTR on 7 June 2001 which interpreted the responsibility of commanders to
include civilians who had the influence to mobilize Period.
It is interesting because the two conventions used by judges as legal arguments in handing
down their decisions, namely the Rome Statute and the ICTR, are conventions to which
United States is not bound. As the general principle of the principle of pacta sunt servanda as
a natural basis that provides the binding force of international agreements for the countries
involved.
Based on the description above, it can be seen that it is not necessary to become a state
party or participant in an international agreement and it is not a necessity to ratify
international agreements through legislation to make parts of international agreements the
basis of argumentation to resolve a problem or say the lack of accommodation of a legal
event in the context of national law. The state through its judicial power can take progressive
steps to achieve justice and avoid impunity (people are not punished because there is no
governing law). This is where the importance of state sovereignty lies, because in principle
the state must be able to implement its laws on the territory of the country, then it is said that
the state is a sovereign state.
Conclusions
From the discussion on this research, it can be concluded as follows:
An agreement is said to be an international agreement if it is made by a subject of
international law, subject to international law and gives birth to rights and obligations. The
stages of making an international agreement are the same as a national scale agreement,
which is made with the stages of adoption of the text, authentication of the text, consent to be
bound.
The impact of the ratification of international agreements on national law must first be
seen from the position of the state in the international agreement as a state party or not and
must also see the substance of the international agreement itself, if what is regulated in
international agreements is in contact with individuals, it will change national law. Changes
in national law certainly require the approval of the legislature. In the reality of judicial
power, the judiciary can still base legal arguments to international treaties without the state
having to become a state party or wait for the legislative process of the international treaty
itself.
