The article discusses the relationship between international law and domestic law in the context of Indonesia. 6 Tiyanjana Maluwa, 'The Incorporation of International Law and its Interpretational Role in Municipal Legal Systems in Africa: An Exploratory Survey', 23 SAYIL (1998), 48. Its historical background may be relevant in examining the then Indonesian view of the domestic status of international law.
During the course of the authoritarian regimes - the first and the second - the debate on the relationship between international law and the newly formed Indonesian legal system did not develop properly. HOSTILE ATTITUDE AFTER INDEPENDENCE Indonesia was to some extent consistent with the attitude of other new Asian states in the earliest period after the Second World War towards established rules of international law, e.g. Chimni, "Third World Approaches to International Law and Domestic Individual Responsibility". Conflicts', 2 JIL Chinese.
16 Sunaryati Hartono, 'The Interaction between National Law and International Law in Indonesia', in Paul Waart, Paul Peters and Erik Denters (eds.), International Law and Development (1988), 35. 4 of 1960 and maintained a 'persistent nun -compliance with international law' until the special regime was fully accepted internationally, as adopted in the 1982 UN Convention on the Law of the Sea.
NO COLD SHOULDER DURING THE NEW ORDER (1966-1998) President Soeharto ruled with an iron fist in a period of authoritar-
Yamin pointed out that Eastern Europe and Asia were not involved in its creation.28 The idea became a public perception in the given period and to some extent discouraged the development of interest in international law in Indonesia. During Suharto's New Order, Indonesia warmed to international law as the country opened up and became closer to the Western world. This change in her stance towards international law was highlighted when prominent scholar Professor Moetar Kusumaatmadja sought to balance the legal requirements of developing countries with the stability and relevance of international legal obligations.
He pointed out that the existing international law may be outdated and may no longer adapt to the dynamics of the changing international world and its communities. Professor Kusumaatmadja said that Indonesia's rejection of unequal international legal obligations should not constitute a violation of international law. Indonesia's success in gaining international recognition for 'violation of international law' has led many scholars to see differently about Indonesia's attempt to gain recognition of the archipelagic state con-.
He further argued that a unilateral act taken by a developing country, whether destructive or constructive to international law during the initial stages, should not necessarily be considered destructive in the end. This has been successfully demonstrated by the Indonesian experience in dealing with the international law of the sea. As military power dominated the political scene during the New Order, international law was valued and had some effect based on political rather than legal relevance: it was the will of the President that determined whether international law should bind or influence . the state.
It was the same political power that encouraged Indonesia to integrate East Timor in 1976 by means of an act claimed by the international community as incompatible with international law.33 Therefore, international law did not find its legal basis or basis. in the national legal system because its effective application had not been enforced by law. 31 Barbara Kwiatkowska, 'The Archipelagic Regime in the Philippines and Indonesia, Making or Breaking International Law', 6 International Journal of Estuarine. Opposition to international human rights laws began in 1975 when Indonesia dealt with the issue of the occupation of East Timor.
This concept was effectively applied by the New Order regime, in which individualistic rights were considered secondary or even irrelevant to those of the state.
THE REFORM ERA (1998 - TO PRESENT TIME)
THE NEED FOR CLARITY ON INTERNATIONAL LAW IN A DEMOCRATIC INDONESIA
Indonesia's democratic transition has prompted the state to clarify the status of international law under its domestic law. It is argued that the relationship between international law and South African municipal law is now more clearly defined than that. 44 Dermott Devine, “The relationship between international law and municipal law in the light of the 1992 Interim Constitution of South Africa,” 44 ICLQ (1995), 1.
Before democratization, the status of international law in their domestic law was not regulated either by a constitutional provision or by lower legislation. Encouraged by scholars, the relationship between international law and domestic law, including the status of treaties, is regulated by constitutions.46 Although the types of relationships they create vary, such general clauses are present in most constitutions. cloud. 47. 45 Andre Stemmet, “The impact of recent constitutional developments in South Africa on the relationship between international law and municipal law”, 33 Int'l L.
Vereshchetin, 'New Constitution and the Old Problem of the Relationship between International Law and National Law', 7 EJIL (1996), 34. The question of the legal status of treaties under national law was therefore dealt with by the discretion of the national court. executive (government) without any checks and balances from the legislature. The current constitutional and governmental structure undoubtedly necessitates a clear legal system, including the management of the relationship between international law and national law.
Through a system of checks and balances, the constitutional body ensures that treaties are observed on the basis of the national legal system. In such circumstances, the lack of a clear legal regime on the status of treaties under national law will create uncertainty and unpredictability regarding the rights and obligations arising from such treaties. 52 It is often argued that globalization [international law] has invaded the once exclusive zone of domestic affairs to regulate relations between governments and their own citizens, see Anne Marie Slaughter and William Burke-White, 'The Future of International Law is Domestic (or , The European Court of Justice)', 47 Harv.
The question of the relationship between treaties and national law also involves the hierarchical status of treaties within the national legal system.
COMPLIANCE WITH INTERNATIONAL LAW
As a party to treaties, Indonesia is bound by the principle of pacta sunt servanda – a fundamental principle of international law – which stipulates that treaties and other agreements are binding on the parties and must be implemented in good faith.59 Failure to comply by any country would therefore not only violate international law, but it would also result in non-compliance status, which could have a negative impact on the country's international reputation and credibility as a member of the international community. It was established that non-compliance with treaty norms in the internal field involves the responsibility of that country, which cannot invoke its domestic law. The state has a duty to ensure that treaties are applied in its domestic law.
How treaties are transformed or adopted and arranged within the respective internal legal order is a matter of domestic law.60 These traditional points of departure remain in place insofar as a so-called Westphalian sovereignty model characterizes international law.61. Globalization requires greater observation and compliance of treaties by domestic law and for that purpose a strong mechanism for compliance of treaties under international law has been developed. It is interesting to note that many multilateral treaties nowadays, to which Indonesia is a party, include mechanisms to ensure that the parties comply with obligations arising from the treaties.
58 From the empirical implications of pre-commitment and diffusion theories, Ginsburg found that the adoption of international law is a useful strategy for democracies to shut down particular policies, encouraging trust in governments and state regimes and strengthening global reputations, see Tom Ginsburg, Svitlana. Chernykh and Zachary Elkins, . Engagement and Diffusion: How and Why National Constitutions Incorporate International Law', University of Illinois Law Review (2008), http://works.bepress.com/. 61 Stephane Beaulac, 'Westphalia, Dualism and Contextual Interpretation', EUI Working Papers, European University Institute Mattias Kumm, 'Democratic Constitutionalism Encounters International Law: Terms of Engagement', in S.
Since human rights treaties deal with the rights of individuals who are subjects of domestic law, their implementation in the domestic sphere is absolutely necessary. In doing so, Indonesia continues to face questions about how such treaties are enforced domestically, which can only be effectively addressed if a clearer domestic status is provided for the treaties.64.
DECENTRALIZATION
CONCLUSION
Indonesia's attitude towards international law since its independence as a sovereign state has progressively changed from hostile to friendly. In the initial period, its creation as a state was considered a "violation of prevailing international law" for colonialism, but at the same time it developed a new international norm of self-determination. Indonesia turned to international law only in terms of its own strategic interest and survival.
On the other hand, Indonesia would resist international law if it affected the country's political survival and stability. As required by any democratic legal system, Indonesia must go beyond being amicable with international law. Indonesia should shape its national legal system in such a way that international law obtains a proper legal status under it.
This is intended so that international law not only binds Indonesia at the international level, but should also have proper legal effect under domestic law. The relationship between international law and municipal law in light of the interim South African constitution of 1992”. The interaction between domestic law and international law in Indonesia” in International Law and Development.
International Law in Municipal Legal Orders of Asian States: Virgin Land” in Essays in Honor of Wang Tieya. The Archipelagic Regime in the Philippines and Indonesia, Making or Breaking International Law', International Journal of Estuarine, Vol. The incorporation of international law and its interpretative role in municipal legal systems in Africa: an exploratory survey”.
The impact of recent constitutional developments in South Africa on the relationship between international law and municipal law”.
