THE POSITION OF INTERNATIONAL LAW IN THE UNITED
STATES NATIONAL LEGISLATION SYSTEM
Introduction
National law and international law are two legal domains that on the one hand are
sometimes understood as a unified legal system and on the other hand are sometimes
positioned in two different legal system entities that are separate from one another. Both
perspectives in practice map the relationship between national law on the one hand and
international law on the other. Especially regarding the existence and applicability of
international law in a country's national legal system. A view that believes that national law
is a sub and part of international law automatically subordinates national law to international
law. Conversely, a view that believes that the existence and applicability of international law
depends on the acceptance of national law automatically means that the existence of
international law is interdependent on the recognition and acceptance of a country.
Interpreting international law as a legal domain that regulates relations between national
states indirectly provides a point of view that the existence of international law is closely
related to the existence of national states. The presence of national states in all parts of the
world is due to different historical, social, political, legal and cultural backgrounds that form
an identity that becomes an adhesive as a nation as well as a differentiator from other nation
states.
The formation of a state with a national government is not just due to the
sedimentation of historical identities among the communities that are incorporated in it but
more than that there are common ideals to be realized such as promoting common welfare
and protecting all its citizens. The formation of a state automatically forms its own legal
system as the basis for organizing all state government affairs. Through the legal system, a
state affirms its sovereignty inwardly and outwardly. Inward sovereignty is manifested
through various legal products produced by both legislative, executive and judicial
institutions. The resulting legal products have the power to force all legal subjects within the
territorial jurisdiction of a country.
The position of legal products formally is not subordinate to external forces outside the
state but its validity always refers to the constitution as the highest basic law in each
country. While outward sovereignty is manifested through its independence and freedom to
organize the government and cooperate freely and equally with other countries in fulfilling
their respective interests.
This series of descriptions is a fact that the formation of a sovereign state, whether we
like it or not, automatically becomes part of the international community. In fact, in practice,
the birth of a state is not uncommon without the help of other countries, either directly or
indirectly, either physically or through the process of diplomacy. In addition, the recognition
of other countries is one of the conditions for the birth of a state.
Through the recognition of other countries, it becomes a door for a newly established
state to be able to cooperate with other countries. This is because the recognition is a form of
confirmation of the legal status of a state as a subject of international law to which the rights
and obligations to conduct legal relations with other countries are attached.1 This means that
a state is considered capable and able to account for all its actions in the life of international
relations. In this context, the position of the state in international relations is a public legal
entity (public rechtsperson) which is assumed to fulfill the ability to act as a legal subject.2 .
Because the natural subject of law is actually only a human being (natuurlijke person) .3
The national state on the one hand and the international on the other are two world
realities that can only be sorted out but cannot be separated. On the one hand, it is
recognized that the basis for the formation of the international community is none other than
the existence of national states with their respective identities and sovereign rights, but on
the other hand, the birth of a country to fulfill domestic needs often requires assistance and
even forces a country to cooperate with other countries. That in international relations it is
not uncommon to cause disputes of interest that are very difficult to avoid in the traffic of
rights and obligations between one country and another.
In this context, there are various international conventions, both multilateral and
bilateral, to overcome problems that arise in international relations. Even at a more
established level, various super-state organizations have been formed, which have become
forums for international relations international forums in dealing with various issues
between countries. Then immediately a state is subject to and bound by various legal
products produced by international conventions. If so, where is the location of international
law in the national legal system and where is the dimension of state sovereignty as a basic
principle to place the state as a subject of international law.
Discussion
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
Various Perspectives on the Relationship between International Law and National Law
Interpreting the state is no different from interpreting an individual human being.
humans on the one hand are personal beings who have freedom and equality with other
humans. On the other hand, individual humans in fulfilling their needs and continuing their
lives in the world cannot do without the help of other humans, which forces a human being
to inevitably cooperate with other humans. Humans as individuals have personal territory in
asserting their rights. Within certain limits, it cannot be intervened by other humans as long
as it does not have a destructive effect on other humans in the environment. Based on his
ability, a human being has the right to relate to other humans, form associations and
societies and take part in his community in order to fulfill his affairs and interests both
personally and with his group.
In simple logic, joining an individual human being in a community of associations,
associations or organizations makes an individual subject to the applicable provisions agreed
upon in an association that is followed. So that both based on the rules of the association and
ethically the morals that develop in the tradition of the organization make a person
voluntarily submit if he wants to exist in the association that is followed. If an individual
does not agree with the various provisions and moral ethics that develop in an association,
there are two consequences, namely being expelled or leaving the association itself.
However, in this context, it seems quite clear that humans are the main actors in social
relations. Even though there are rules, norms and moral ethics that bind a community, the
sedimentation of them is still rooted in humans as the main actors.
One reality faced by an individual human being is that his birth on earth is not just by
itself, but from the process and in a social environment. So in its growth and development, it
is always within the traditions and norms of the society.
In addition, the state is also considered capable of acting legally and is given the
independence to act with all rights and obligations and is responsible for all choices of
action in its social relations. Drawing on this view as an approach in understanding the
pattern of national state relations in the international context, the existence of international
law stands on national states.4 , but it is not denied that the birth of some countries is due to
the services and support of other countries in the international community. The support of
countries for the birth and formation of an independent and sovereign state does not mean
that other countries are free to regulate and intervene in the new state. Because
independence and sovereignty means the freedom and equality of a country to organize and
organize its own government and make choices freely and equally to cooperate with other
countries and join the international community. The submission of a country and
cooperation in the international context does not mean the loss or damage of a country's
sovereignty but it is nothing but a free choice in the realization of a country's sovereignty in
determining the country's preferences in international relations.
This affirms Kelsen's view of the unity as a whole between national and international
law. In fact, this view states that the international legal system not only requires the national
legal system as a supporting requirement but also determines the scope of validity in all
compliance. Therefore, international law and national law are inseparable as a whole.
Although Fenwick does not use the term validity like Kelsen in positioning national
law, the above description at least shows his intellectual attitude towards the position of
national law as a place where international law gets its perfection. Meanwhile, Kelsen
directly shows the position of national law as the basis of validity in the hierarchy of norms
for international law. The placement of national law as the main subject of international law
appears to be influenced by Kelsen's own positivist way of thinking which understands the
existence of the state as a sovereign legal organization, the organizer of power, and through
its organs manages the government based on law. On the basis of national laws, a state
conducts relations with other states and vice versa. Therefore, international legal norms
according to Kelsen are incomplete norm and becomes perfect after being authorized by
national legal norms10 . The series of descriptions shows that Kelsen belongs to the school of
monism with national legal primates.
In addition to the school of monism with the primacy of national law, there is also a
school of monism with the primacy of international law. This school is seen by Kelsen as a
traditional doctrine with an approach from the side of international law in understanding the
relationship between international law and national law. This view brings the state in an
intrinsic relationship to international law and therefore, all the "elements" of the state are
determined by international law11 . It is true that all elements of the state are determined by
international law and thus it can be stated that international law is superior to national law
may have some truth if seen from the point of view of its scope that international law
regulates the traffic of legal relations between states and thus subordinates the national laws
of the states that are members of it. Instantly, the national law of a country in relation to the
legal material of an international treaty is subject to international law. The problem then is
that the presence of a state in an international convention cannot be separated from the
sovereignty of its national law that allows for it. So that the basis for the formation of
international treaties is none other than the sovereignty of the national law of each country,
so that even if a country is subject to the agreement it is inseparable from the national law of
each country which is the basis of its validity in forming international law. However, it
cannot be avoided that after the establishment of a treaty, the primacy of international law
automatically applies. Because the involvement of a country in a treaty which then becomes
international law for the countries involved in it raises legal implications that cannot be
avoided. One of the implications is that the provisions of national law related to the object of
the international agreement must automatically adjust to the provisions of international law
that have been agreed upon.12 .However, the validity of an international agreement still
returns to the sovereignty of the state as a subject of international law. Because it is
impossible for a state to make international agreements if it does not have the legal position
and ability to act without the legal sovereignty of each state regulated in its constitution. For
this reason, monism with the primacy of international law is only quasi (pseudo) over
national law.
If the flow of monism views international law and national law as a unified system
under one fundamental principle with the perspective of both national and international legal
primates, then the flow of dualism maps the relationship between international law and
national law in a separate and different space and each stands alone as a legal system.13
There are two human reasons dualism considers international law and national law to be in a
separate place, this is because both the material and the source are different.14 Heinrich
Triepel.15 a German jurist who first mapped it out by stating, "international law and
domestic (or municipal) law exist on separate planes, ...". International law regulates the
relationship between states, while national law regulates the relationship between
individuals and individuals and individuals with the state. Furthermore, international law is
based on agreements between states including agreements according to Triepel are
international treaties and customs. Both of these are statements of the collective will of the
state and therefore cannot be changed unilaterally.16 So are international agreements made
by states separate from their national legal system? The question is at least confusing for the
dualist school as well as showing the validity problems contained therein that cannot be
resolved completely.
Among the validity problems is whether the placement of international law and
national law in a separate space and each stand alone shows that the two laws also have
different validity both materially and formally? The problem of validity is actually more
about the basis of validity that causes a norm to have authority and binding force. If
international law is placed as a legal system that stands alone and is separate from national
law then where is the basis of its validity? It is different with the validity of national law
which refers to the constitution both in the formal and material sense. The problem of
validity actually also occurs in the flow of monism but not as severe as in the flow of
dualism. When returning to the meaning of validity as the basis of validity and binding force
in a single-valued hierarchical structure of norms, then placing the national legal system as
the basis for the validity of international law in a literal sense means that there has been a
plurality of validity for international law among the national laws of states. The national
legal system as a symbol of the sovereignty of each state is the basis of its validity which is
manifested in the form of the common will of states and becomes binding international law
for the states that are members of it.
The Existence of International Law in the National Legislative System
Between Incorporation and Transformation
There are two theories that discuss the existence of international law in a country's
national law, namely incorporation theory and transformation theory.17 . Incorporation
theory is a continuation of monism that views national and international law as one unit.
Therefore, the incorporation theory views international law as part of national law and the
enactment of international law in the national legal system does not require prior legislative
approval but automatically applies when an international agreement is approved by the
Government of a country. Conversely, legal products produced by the state as much as
possible are not contrary to and in accordance with international law. Countries that adhere
to the doctrine of incorporation are the United States, but there are exceptions, especially if a
national legal product is contrary to international law, then national law takes precedence.18
Provisions of international law that do not conflict with international law immediately apply
by themselves are called self-executing while those that are considered contrary and require
legislative approval are called non-self executing.19 This shows that the submission of US
national law to international law depends on the level of interest of the country and therefore
the United States is an adherent of monism with the primacy of national law. The same
practice also takes place in the United Kingdom.
As previously described, dualism or pluralism views international law and national
law as being in the same place in different spaces with different subject matter. International
law regulates relations between sovereign states, while national law regulates relations
between citizens and citizens with the state. The idea that the international legal system and
the national legal system are two different and independent legal systems became the
starting point for the birth of transformation theory. Transformation theory conceptualizes
the enactment of international law in national law must first be approved by the state
legislature. The conception of transformation is really a process of harmonizing international
law into national law by remembering that the two legal systems are different and separate
from one another. So that a provision of international law before being enacted in national
law needs to be changed and adjusted to the form in the national legal system. Such a
conception appears to position the sovereignty of national law as the main point of the
enactment of international law as well as validating the theory of voluntarism which states
the enactment of international law on the will of the state.20 In addition to these two theories
there is the theory of adoption, in which a state tacitly recognizes the existence of the
principles of international law and adopts the principles of international law through
legislation in the national legal system of a country.
Paying attention to the practice that takes place in countries in addressing international
legal relations and international law, it appears that no one strictly stands on one school,
whether monism or dualism. This can be seen in the operational conceptual tools of the two
schools, namely incorporation and transformation used simultaneously by almost all
countries in the world. The United States and the United Kingdom are generally known as
countries that adhere to the flow of monism and incorporation, but in practice when in
certain conditions there is a conflict between international law and national law, a new
international legal provision can be valid and binding after obtaining Congressional approval
as a law and if the conflict has not been resolved through the legislative process, then
national law takes precedence over international law as a basis for consideration in making
decisions. Legislative approval of the enactment of international law in national law
(implementing legislation).21 shows that the United States in certain conditions also adheres
to dualism in understanding the relationship between international law and national law.
Therefore, under certain conditions The application of international law in national law is
also done through a transformation approach.
The Context of International Law in the United States Legislative System
The proliferation of United States sense of nationhood began when ethical political
policies began to be implemented by the Dutch East Indies Colonial Government around
1901.22 The sense of United States nationality reached its form as an independent and
sovereign state on August 17, 1945. Achieving an independent United States is not an easy
and short struggle but through a very long process by sacrificing the body and soul of the
nation's predecessors both physically and through diplomacy. The physical struggle,
especially with the diplomatic process in achieving independence, shows the attitude and
awareness of the United States nation of its existence as part of the international community.
The declaration of independence on August 17, 1945, is not only a political statement of the
sovereignty of the United States State both inward and outward, but also a legal statement to
countries around the world that the United States state since August 17, 1945 is a subject of
international law capable and capable of taking legal action in international relations. So that
the declaration of independence from the perspective of international law is a statement as a
subject of international law as well as willing to submit to the provisions of international
law, especially when becoming a party to international treaties and international customs.
The leaders of the United States Nation are well aware that declaring independence without
being accompanied by the recognition of other countries has legal implications for fulfilling
the requirements as a subject of international law. This is because the recognition of other
countries is also a recognition of legal status as a legal subject (holder of rights and
obligations) who is considered capable and able to take legal action in the form of making
agreements with other countries. The founding fathers managed to gain international support
and Egypt was the first country to provide support for the recognition of United States
independence around June 1947. Not only that, but the Egyptian government and its people
mobilized support to several Middle Eastern countries, the Arab League, and Asia. As a
form of Egypt's recognition of United States independence, it was followed up by United
States-Egypt Friendship Treaty, followed by Syria, Lebanon and Iraq23 . The agreement
indirectly affirms United States existence as a sovereign state and a subject of international
law equal to other countries.
From the above reality and then drawn in the national legislation system, shows the
attitude of the nation regarding the pattern of relations and the existence of international law
in United States national law. The Preamble of the 1945 Constitution in the first paragraph
reads:
"That freedom is the right of all nations, and for this reason, colonialism must be abolished,
because it is not in accordance with humanity and justice".
The series of basic ideas in the first paragraph is continued in the fourth paragraph
which reads, "...participate in implementing a world order based on independence, lasting
peace, and social justice...a just and civilized humanity...". The meaning behind the first
paragraph emphasizes the attitude of the United States people who oppose colonialism in the
world because it is contrary to humanity and justice. That national independence and social
justice are fundamental dimensions in maintaining world order and lasting peace. The
statement of the United States State's willingness to implement world order and lasting
peace contained in the Preamble of the 1945 Constitution shows the state's commitment to
submit to international law. But the condition for being subject to international law is
independence. This is because independence, apart from being a fundamental requirement to
be a subject of international law, is also a manifestation of humanity and justice. The
realization of world order and lasting peace is only possible if humanity and justice are
upheld. For this reason, the validity of the stand point that makes the United States state
subject to international law is the Constitution (1945 Constitution) both in a formal and
material sense.
Validity in the formal sense refers to the position of the 1945 Constitution as the
highest basic law and is a symbol of state sovereignty both inward and outward. Meanwhile,
validity in the material sense refers to Pancasila and the Preamble of the 1945 Constitution
which, when examined from the angle of The view of legal philosophy is a combination of
the philosophy of divine law (Lex Aeternal) as seen in the first principle, the philosophy of
natural law (lex Natura) as seen in the second principle and the fifth principle, the
philosophy of legal history (historical school) as seen in the third principle, the philosophy
of positive law (lex positiva), and human law (lex humana) as stated in the third principle
and the fourth principle25 . Understanding the position of international law in the United
States legislative system from the point of view of legal philosophy by placing Pancasila as
the foundation of its philosophy, United States is a country that adheres to both the flow of
monism and the flow of dualism or pluralism. The foundation of the flow of monism lies in
the first and second precepts, while the flow of pluralism lies in the third, fourth and fifth
precepts. The first principle is said to be the basis of monism in understanding the
relationship between international law and national law because the first principle concerns
the nation's basic belief that the United States state and the entire universe along with its
laws are God's universal creations. The same assumption also occurs in the structure of
natural law thinking. Meanwhile, the historical school shows that nationality is the historical
reality of a community of human beings formed in strong emotional ties by ethnicity,
religion, race, culture, law, politics, social, and region. Each community grows with a
different historical process that becomes its identity and character. Therefore, each has a
legal system that is independent and separate from one another. In this context, United States
recognizes that in addition to laws that have a universal dimension in a unified system
(monism) there are also national legal systems that are independent, different and separate
from one another (pluralism).
Further attention to the existence of international law in the United States legislative
system can be seen in Article 11 of the 1945 Constitution which reads as follows:
The President with the approval of the House of Representatives declares war, makes
peace and treaties with other countries. ****)
The President in making other international agreements that have broad and
fundamental consequences for the lives of the people related to the burden on state
finances, and/or require changes or the formation of laws must be approved by the
House of Representatives. ***)
The provisions of Article 11 of the 1945 Constitution are still very general and
therefore through paragraph (3), further regulation is delegated to the law. On that basis,
Law Number 24 Year 2000 on International Agreements was issued. Several things are the
basis for assessing the existence of international law in the United States legislative system
as stipulated in Law Number 24 of 2000 concerning International Agreements, among
others: first, the basis for considering letter a broadly determines the basis for conducting
international cooperation which is realized through international agreements is in order to
achieve the state's objectives as in the Preamble of the 1945 Constitution, namely protecting
the entire United States nation and all United States blood spills, promoting general welfare,
educating the nation's life and participating in implementing world order based on
independence, lasting peace and social justice, the Government of the Republic of United
States, as part of the international community; and secondly, Article 9 paragraph (1) states
that the ratification of international agreements by the Government of the Republic of
United States is carried out to the extent required by the international agreement and
paragraph (2) Ratification of international agreements as referred to in paragraph (1) is
carried out by law or Presidential Decree.
Based on Article 9 paragraph (2) of Law Number 24 of 2000 concerning International
Agreements, the formal position of international law in the United States legislative system
is at the level of Laws and Presidential Decrees. Furthermore, Article 10 of Law Number 24
of 2000 Concerning International Agreements determines the content material of
International Agreements that must be regulated by law, among others: a. political, peace,
defense, and state security issues; b. changes in territory or delimitation of the territory of
the Republic of United States; c. sovereignty or sovereign rights of the state; d. human rights
and the environment; e. establishment of new legal rules; and f. foreign loans and/or grants.
Outside the material as mentioned in Article 10, the ratification is carried out through a
Presidential Decree. The ratification of international agreements through laws and
Presidential Decrees further emphasizes that United States is a country that adheres to both
monism and dualism or pluralism in understanding the relationship between international
law and national law. Dualism or pluralism can be seen in the provisions as in Article 10 of
Law Number 24 of 2000 concerning International Agreements. The ratification of
international agreements in the form of laws as required by Article 10 is a process of
transformation (changing the form of international law into national law).
The transformation shows that there are two different legal systems and when it is to
be enacted in national law, it must previously be changed in accordance with the form of
national legislation. The transformation, not only in a formal sense, but also in the process of
harmonization between the interests of international law and the interests of national law
discussed and with joint approval between the President and the DPR. The same practice in
the United States is called nonself executing. The determination of the material of
international agreements that must be ratified by law shows that there are interests of the
state and the people that must be maintained and protected by the ratification of an
international agreement. Therefore, the flow of dualism is actually closer to the flow of
monism with the primat of national law. The ratification of an international agreement
through a Presidential Decree means ratification without the approval of the DPR. This
means that when an international agreement is agreed upon by the President and ratified
through a Presidential Decree, then an international agreement is immediately in effect. This
shows that between international law and national law is a unity without any conflict
between one another. This practice of ratifying international agreements in the United States
is called self executing. Some examples of ratification of international agreements through
Presidential Decrees include:
Presidential Decree No. 36 of 2002 Concerning the Ratification of ILO Convention No.
88 Concerning the Organization of the Imployment Service (ILO Convention No. 88
Concerning Employment Placement Service Institutions);
Presidential Decree No. 26 of 2002 Concerning the Ratification of the Amendment to
the Agreement Relating to the International Telecommunication Satellite Organization
"INTELSAT";
Presidential Decree No. 32 of 2002 on the ratification of the International Coffee
Agreement 2001 (International Coffee Ratification 2001);
Presidential Decree No. 25 of 2002 on the Ratification of the Instrument Amending the
Constitution and the Convention of the International Telecommunication union
Minneapolis, 1998; and
Presidential Decree No. 106 of 2001 on the Ratification of the Convention on Nuclear
Safety.
Cover
The position of international law in the national legislative system is one of the sources
of law whose ratification and enactment in national law is carried out either through laws or
through Presidential Decrees. The determination of international law material that is
legalized through laws and or through Presidential Decrees depends on the degree of
material regulated by an international agreement. Both laws and Presidential Decrees are
two legal forms that become the door and basis for the ratification of international law in
national law. This shows that United States from a theoretical point of view uses the flow of
monism with the primat of national law and the flow of dualism. So that in practice the
enactment of international law in the national legal system is carried out either through
incorporation, transformation, and adoption. In the end, that the choices of flow in
addressing the relationship between international law and national law as well as various
concepts and methods of enactment in the national legislative system refer back to the
national goals of each country in international relations.
