By: Iman Prihandono, SH, MH, LL.M

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Existence of Int’l Law

# Voluntarism; depends on the consent of states.

# Objectivism; separate from the consent of states.

Dualism (Pluralism) Theory

* Positivist, supremacy of state.

* International law is founded upon the consent of states (customs and treaty).

* Wide differences between this two law.

* Exist separately, does not have an effect on, or overrule, the other.

Wide Differences

* Source: State will Vs. Consent of states / Intra-state Vs. Inter-state;

* Subject: Persons Vs. States;


* Unitary view of law as a whole;

* Possible hierarchy between the two;

Monism International Law

* Lauterpach: uphold a strong ethical position with a deep concern for human rights (Naturalist).

* Faith that the capacity of the rules of international law will create international order;

* Upon respect for human rights and the welfare of individuals;

* Kelsen: By positing equality, States owe their legal relationship to one another to the rules of international law.

* International law is superior to or more basic than municipal law.

Monism Municipal Law

* Municipal law as the source of international law (the law of international affairs);

* International law depends on the States consent to be bound.

Indonesia? Monism or Dualism

* Based on Article 3 of the Law No. 24 of 2000 on International Treaty, an international law shall be binding as national law once it is accepted by the house of representative and ratified by the government.

Conflicts of law

* Undang-undang No. 7/1994 Pengesahan Agreement Establishing The WTO. Mobnas Case.

* Keppres No. 34/1981 pengesahan dari New York Convention 1958. Karaha Bodas Case.

* Undang-Undang No.11/2005 tentang pengesahan ratifikasi Kovenan Hak Ekonomi, Sosial dan Budaya (Ekosob).

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