International Law (BM 5)

International Law and Municipal Law (Wednesday, 26 February y)

International Law National Law

Sources Conventions, CIL, general Constitutions, acts, government regulations, and

principles, jurisprudence, local regulations
doctrines, rule and
procedures, and decisions

Subjects of States, individuals, Individuals and legal entities

Law international organizations,
belligerents, and NSAs

Compliance Enforcement mechanisms: Due process of law range between legislative,

Strategies peaceful and use of force executive, judicative, and constitutional courts

Institutional Various institutions Central and local legislative, executive and

Framework judicature in the national, provincial and sub
provincial level centred on the Supreme Court

- Whether international law is similar to national law, or are they different?

- Can individuals invoke international law before domestic courts?
- Article 27 of the VCLT: in so far as treaties are concerned, a party may not invoke the
provisions of its internal law as justification for its failure to carry out an international
agreement, while article 46(1) provides that a state may not invoke the fact that its consent
to be bound by a treaty has been expressed in violation of a provision of its internal law
regard- ing competence to conclude treaties as invalidating its consent

- Article 46 of the VCLT:

- Dualism theory: international law and municipal law are 2 separate legal entities because
they regulate different subject matters. States that follow this theory insist that international
law will only become part of its municipal law if it has been expressly adopted as such by
way of legislative act.

- Monism theory:
- Divergence between international and national law.
- Make a comparison study between SDGs No. 11 and Subjects of Inter Law: States

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 • Why cities and not states?

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International Law (BM 6)
State as the Primary Subject of International Law (Monday, 02 March y)
- Characteristics of a state
• Permanent population
• Defined territory
• Government
• The capacity to enter into International relations
• Supplementary elements include: claiming to be a state, independence, right to self-
determination, democracy and human rights

- Sovereignty is important to determine whether or not a body is a state

• External sovereignty: rights and duties derived from international law
• Internal sovereignty: constitutional autonomy
- Subject refers to:
• Entities that bear international rights and obligations
• They have international legal personality
- Questions
• Who, whom/which, how, and when can recognition be made?
• What are the benefits of recognition?
• Why NSA is so eager to be recognised?
• Is it an act of politics or of legal?
- Declaratory Theory: Based on the idea that as long as an entity have fulfilled the 3
other characteristics, therefore they are considered as a state (inherently).

- Constitutive Theory: Even though you have the first, third, and second element, you
still need another state’s recognition of you. Constitutive theory is basically political
in a sense that if a state does not want to recognise another state, then that could
hampers them from international relations.

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 - Drawbacks of Constitutive Theory: To enter UN -> UNSC, then they will give a
recommendation where the 5 UNSC agrees in, for example the US. Hence, the US
never agrees in giving recommendation to Palestine.

• Has Indonesia also recognise others? Why?

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International Law (BM 7)
Recognition and Territorial Sovereignty (Wednesday, 04 March y)
- Reciprocity principle
- Proliferation of dominant actors
• Growth of NSAs (Non-State Actors)
- Territorial Sovereignty as Rational for Politics of Survival
• Wawasan Nusantara Concept, that states that Indonesia is an archipelagic state
• Bhinneka Tunggal Ika concept as the internal cohesion of national politics
• Free and active external politics
• Respecting other states’ territorial integrities
• Principle of non-interference
• Peaceful dispute settlement

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International Law (BM 8)
Subjects of International Law: Individuals (Monday, 09 March y)
- Individuals are subjects of international law under International Criminal Law, IHL, IHRL,
and International Diplomatic Law.

• ICL: Individuals are considered as criminals and victims.

• IHL: Individuals are considered “protected objects”.
• IHRL
• International Diplomatic Law
- Rights Holders vs Duty Bearers
• Duty Bearers are states (under ICCPR) and delegate authority form states, including
multinational corporations, transnational corporations, international or even regional
organisations

• Rights holders are individuals (under ICCPR) or group of individuals under [1] sex,
religion, race, and origins, [2] vulnerable groups, [3] disability, [4] LGBT, [5] migrant
workers, and [6] marginalised groups

• Group yang delegated authority from states and individuals areanya dibawah ICESCR.
- Mechanisms analysis
• Causal analysis
• Role-pattern analysis
• Capacity gaps analysis
- Factors in developing human rights provisions in the 1945 Indonesian Constitution
• External pressure? Politic of accommodation? (Reform Movement 1998) Global trend?
National needs? Prerequisite of a legal state?

- In Indonesia:
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- National and international nexus

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 • Sovereignty as responsibility vs. National interests and resilience
• Standards in actions or inaction vs. Constitutional limits
• Best practice for the victims vs. Unwilling and Unable
• Practical and effective vs. Legal and political system
• Multi dimension of aspects vs. Compliance and legal culture
- Specific aspects of international organisations
• The legal personality of. International organisations
• Constitutions of international organisations as treaties: eg. UN Charter
• Membership
• Powers of international organisations
• Law-making by I International organisations
• Applicable law
• Responsibilities of international organisations
• Member state liability for actions of international organisations
• Accountability and good governance
• …