Defanna D.

Valeska
2006606864
Hukum Internasional Publik

HUKUM INTERNASIONAL PUBLIK

MIDTERM EXAM
ANSWER DRAFT

1. Prof. Mochtar Kusumaatmadja believes that the international community is in a

state of transition. Based on this statement, explain the factors that influence the
change! (25 points)

The three main factors that caused the transition in the international
community are (1) a change in the political map of the earth, (2) progress in
technology, and (3) changes in the structure of the international community.
(1) The first factor is that there was a change in the political map of the earth.
This happened especially after the end of World War II, when the colonized countries
began to liberate themselves and declared separation from the colonial state. This is a
shift that significant part of the world geopolitical order consisting of several large
countries with a large area consisting of colonies and their sphere of influence (sphere
of influence) to become an international community consisting of various countries
independent. The consequences of this change in the concept of legal science are: the
emergence of important concepts in treaties such as state obligations (responsibility)
of state), nationalization, and public law of the sea and air.
(2) The second factor is technological progress, which has an impact on the
development of the international community and international law is very significant
because of the very rapid changes. These technological advances bring due to the
rapid development in terms of good communication across countries as well as within
the country, now contacting individuals outside the same country does not require a
physical letter to be sent to the recipient, but simply by writing messages via email or
other instant messaging platforms. The development of communication technology is
also a new problem in terms of the digital economy, personal data security, and cyber
crime. Furthermore, technological developments also have an impact on the field of
weapons and thus resulted in the development of the laws of war. Since it was first
developed in the middle of the XX century, weapons of mass destruction in the form
of nuclear energy is a major threat to human life on earth, so that in the middle to the
end of the Cold War and until now, there is an international treaty that limits this
nuclear arsenal, which one of the most famous is the New START Agreement
between the United States and Russia (formerly the Soviet Union).
(3) The third factor is the change in the organizational structure of the
international community, which this development is a result of the two previous
factors. Most important development of this is the formation of various supranational
organizations and institutions that have an existence independent of the state itself. In
contrast to international community organizations which used to be a collection of
sovereign states such as the United Nations (UN), now there are various international
legal community organizations that exist apart from countries, such as the
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International Football Federation (FIFA). We are seeing the process of centralizing

power and authority from sovereign states to international organizations, so that
currently, the international community is not only synonymous with inter-state
society. These symptoms are combined with the emergence of technological
developments that allow individuals to have competence. In addition, there is also a
phenomenon where there is the provision of legal competence to non-state individuals
in certain respects. This makes international law transformed into the law of
coordination, which also gives rise to the characteristics of the law of subordination in
its implementation.

Sumber:

Mochtar Kusumaatmadja. Pengantar Hukum Internasional. ed. 2. cet. 2. Bandung:

Penerbit Alumni, 2003, Hal. 20-23.

2. Natural law or natural law is one theory that explains the basis for the
application of international law. Comprehensively explain legal theory nature,
are there differences in understanding between the figures of natural law and the
weaknesses of the natural law theory? (25 points)

The early theorists of international law used the ideas of Natural Law as the
basis of their thinking. In these early Natural Law principles, from which they build
their theories, there is an amalgamation of ideas Christian ideas and Natural Law, as
was the case in the philosophy and writings of St. Thomas Aquinas. Aquinas stated
that Natural Law is part of God/Divine law, and is the participation of rational beings
in the Eternal Law itself, thus completing the part of the Eternal Law that has been
revealed divinely. Aquinas also argues that Natural Law is the source of moral
behavior, social and political institutions, which lead to unfair acceptance of the law is
unacceptable. Hugo Grotius separates Natural Law conception from its religious
relations, Grotius argues that Natural Law is an ideal law based on human nature as
intelligent beings, as nature has inspired the human mind. Emmerich Vattel also
argues that international law is based on Natural Law because of the necessity
(necessary law of nations) for regulating relations between countries.
The weakness of Natural Law lies in the debate about what is the definition of
Natural Law itself. Natural Law is considered to be too abstract and tends to be
subjective, depending on what each individual believes to be ideal. It can be seen that
the definition of Natural Law depends on the subjective opinion of each expert, so
that causes the value of natural law to differ between countries and cause confusion
fundamental to this concept of Natural Law and therefore its applicability to
international law in each country.

Sumber:

Mochtar Kusumaatmadja. Pengantar Hukum Internasional. ed. 2. cet. 2. Bandung: Penerbit

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2006606864
Hukum Internasional Publik

Alumni, 2003, Hal. 32-35, 46-48.

Malcolm Shaw. International Law. 8th Edition. Cambridge: University Printing House, 2017.

3. In 1982, Indonesia signed the United Nations Convention on the Law of the Sea
(UNCLOS) in Montego Bay, Jamaica. In 1985, Indonesia issued Law No. 17 of
1985 concerning Ratification of the United Nations Convention on the Law of the
Sea, which states that Indonesia is bound by UNCLOS. In the year of 1996,
Indonesia issued Law no. 6 of 1996 concerning Waters Indonesia, the contents of
which explain the Indonesian maritime zone according to what has been
regulated in UNCLOS. In addition, Indonesia also issued Regulations
Government No. 36 of 2002 concerning Peaceful Cross Rights, Government
Regulation No. 37 2002 concerning Indonesian Archipelagic Sea Lanes, and
Government Regulation no. 38 2002 concerning the Indonesian Baseline which
implements several provisions in UNCLOS. Based on this practice, how is the
relationship between national law and international law in Indonesia? Do you
think Indonesia fully implements only one such theory? if not give another
example? (25 points)

The status of international law in national legal systems is not regulated by the
Indonesian Constitution. However, this does not obligate Indonesia to adhere to the
establishment of national law above international law (dualism); on the contrary,
acknowledging the supremacy of international law does not obligate Indonesia to
accept international law for granted (monism). Before making a decision in practice,
numerous factors are to be considered.
There are times when Indonesia embraces dualism, as happened in the
provisions of international law regarding the exclusive economic zone which was
accepted in the national legal system with the issuance of the Law on the Indonesian
Exclusive Economic Zone, which previously Indonesia also ratified the 1982 Law of
the Sea Convention with Law No. 1985. This argument is also strengthened by the
provisions contained in Law No. 24 of 2000 concerning International Treaties, which
stipulates that the ratification of international agreements is carried out by law or
presidential decree. This makes it seem as if Indonesia wants a transformation process
for international law to become national law.
However, there are times when Indonesia also embraces monism, namely
when international agreements concerning the state are subject to external
international law. An example of a case in 1996 regarding the National Car Program
where the President gave special rights to the company, PT Timor Putra Nusantara,
which brought heated reactions from several parties, namely Japan, the US and
several European countries. This case reached the WTO, where Indonesia was judged
that the government's policy, which is Indonesia's national law, violated the principles
of free inflammation. In the end, the WTO handed down a decision on Indonesia to
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eliminate the privileges which showed evidence that Indonesia's national law was
subject to international law (monism is the primacy of international law). In
conclusion, Indonesia does not only implement one theory, but both, depending on the
situation. Indonesia is more inclined to adhere to the principle of monism with the
primacy of international law.

Sumber:

Mochtar Kusumaatmadja. Pengantar Hukum Internasional. ed. 2. cet. 2. Bandung: Penerbit

Alumni, 2003, Hal. 88-94.

Tim Penyusun. Buku Ajar Hukum Internasional. Fakultas Hukum Universitas Udayana: 2017. Hal. 61-69.

Melda Kamil Ariadno. "Kedudukan Hukum Internasional dalam Sistem Hukum Nasional". Jurnal Hukum
Internasional Volume 5 Nomor 3 (April, 2008). Hal. 521-523.

4. In the Statute of the International Court of Justice (ICJ), Article 38 paragraph

(1) regulates several sources of international law that can be used by the ICJ to
decide cases. Explain by including sources, is it only sources? international law
regulated in Article 38 paragraph (1) of the ICJ Statute which can be used by
judges in deciding cases between countries? (25 points)

Article 38 paragraph 1 of the Statute of the International Court of Justice (ICJ)

stipulates that there are four sources of international law, namely (1) international
agreements such as UNCAT, ICCPR; (2) customary international law such as the
concept of the continental shelf or the boundary of the shelf continental, (3) general
legal principles such as universality principle, territorial principle, pacta sunt
sercanda, ne bis in idem, etc.; and (4) the court's decision and leading expert opinion
as a subsidiary source in legal decisions in the International Court of Justice (ICJ).
However, this provision cannot be separated from the provisions contained in Article
38 paragraph 2 which states that the existence of these sources of international law
cannot exclude the power of the Court to decide cases based on the ex aequo et bono
principle, in the event that the parties accept the application of that principle. Ex
aequo et bono principle means justice and openness, in accordance with justice and
goodness, or in accordance with propriety and a sense of justice. Apart from the four
sources of international law stipulated in Article 38 of the ICJ Statute, there are other
possible sources of international law such as listed consent/consensus; international
standards; the use of analogy as a source; decisions of international tribunals (which
are already recognized as subsidiary sources in Article 38 paragraph (2) of the ICJ
Statute); and some parts of natural law (the Jus naturale).
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2006606864
Hukum Internasional Publik

Sources:

Hugh Thirlway. The Sources of International Law (2nd Edition). s.l.: Oxford University Press, 2021.

Tim Penyusun. Buku Ajar Hukum Internasional. Fakultas Hukum Universitas Udayana: 2017. Hal. 38-39.

Statute of the International Court of Justice (ICJ)