Internalization of International Human Rights Law

How do international human rights standards or tools be put into practice within a nation's legal framework? This is a big challenge for those studying international human rights law. This study becomesless meaningful if these norms cannot be used in the context of domestic law because the goal of international human rights law is to protect individuals who live within the territory of a country. Without integrating international human rights law into domestic law, efforts to protect individuals will not be able to be done properly.

  Internasional courts have the power to enforce international human rights law, but there are limitations to their capabilities. In fact, they only deal with specific crimes, and even then after the national court system is considered to have been exhausted. For example, it is critical to strive for the internalization of international human rights law into a country's domestic legal system because the Rome Statute controls the International Criminal Court only has jurisdiction over four types of crimes: genocide, crimes against humanity, war crimes, and aggression. 

Harold Hongju Koh dan rekan-rekannya mengatakan bahwa upaya untuk internalize undang-undang internasional hak asasi manusia dapat dibagi menjadi "sosial, political, and legal internalization." Menurut Koh dan rekan-rekannya, ini terjadi ketika standar internasional hak asasi manusia mendapat banyak dukungan publik, yang menghasilkan kebiasaan umum untuk mematuhi mereka.

Legal internalization occurs when international norms are incorporated into the domestic legal system through executive action, judicial interpretation, legislative action, or a combination of the three. Political internalization occurs when political elites accept international norms and take them into consideration in government policy. According to Koh and colleagues, judicial internalization occurs when domestic litigation causes domestic litigation. Domestic lobbying incorporates international legal standards into binding domestic laws or even constitutions, which non-compliant government officials must follow as part of the domestic legal framework, which results in legislative internalization.  

The position of International Human Rights Law in Indonesia: 

International Human Rights (HAM) law is an important part of international law. There are two perspectives on how the state attaches to international law: the first is voluntarism, which believes that the state's implementation of international law depends on its own will. In this perspective, both international law and national law are considered as distinct legal entities. This concept then yields a monist view emphasizing national law and a monist view emphasizing international law. The monist viewpoint, with an emphasis on national law, regards international law as the continuation and origin of national law, or views international law as a subset of national law, specifically for foreign affairs or auszeres Staatsrecht. 

This viewpoint is based on the conviction that:  

1. There is no global entity that regulates the lives of countries in this world above the national level. 

2. The ability of countries to enforce international agreements is the foundation of international law that governs international relations. The excessive emphasis on written law, which narrows the scope, is a criticism of this viewpoint. 

This viewpoint is frequently criticized as a rejection of international law's enforceability, because the enforceability of international law ultimately depends on the state's decision to comply or not. In this context, the monist viewpoint, with its emphasis on domestic law, is not dissimilar to the dualistic approach to international law. Meanwhile, the monist viewpoint with a focus on international law holds that international law has a higher hierarchy than national law. According to this viewpoint, national law is subject to international law, and its binding force stems from international law's delegation of authority. As a result, this viewpoint indirectly concludes that international law existed before national law, which contradicts the historical fact that national law existed before international law. The claim that international law is the source of national law is also valid. In actuality, national law encompasses all of a nation's powers to enact laws, regulations, and international agreements. For instance, as stated in Article 20 Paragraph (1) of the 1945 Constitution, the DPR has the exclusive authority to enact laws. The 1945 Constitution's Article 20 Paragraphs (2), (3), (4), and (5) also provide an explanation of the procedures. In the meantime, Article 11 of the 1945 Constitution governs the formation of agreements with other nations or those of an international nature. It says as follows: 

1. The President may declare war, negotiate peace, and sign treaties with other nations with the DPR's consent.

2. The DPR must give its approval before the President can make any other international agreements that require changes or the creation of laws and that fundamentally affect the lives of the people, particularly those that deal with the state's financial burden.

3. The law governs additional information about international agreements.

On the other hand, the dualism view is a theory that contends that domestic and international law are independent legal systems that operate separately of one another. The following are some arguments in favor of the dualism approach:

1. There are distinctions between the sources of national and international law; the former derives from state will, while the latter comes from the collective agreement (gemeinswille) of states;  

2. National and international law deal with distinct topics. While the subject of international law is restricted to nations, that of national law encompasses individuals in both the civil and public law domains;

3.  National and international legal structures differ as legal systems do. Only within the framework of national law do complete law-implementing institutions (executive, judicial, and legislative) exist. Furthermore, national law is independent of international law in terms of its applicability or validity; in other words, national law can be implemented successfully even in situations where it conflicts with international law. 

The dualistic perspective has important ramifications. First, a legal system's tenets cannot come from or be predicated on another legal system. Because national and international law are not dependent on one another, no hierarchy can be established between them. Second, the two legal systems cannot clash with one another. Third, provisions of international law must be translated into national law in order for them to have legal force at the national level. 

 The dualistic perspective has important ramifications. First, a legal system's tenets cannot come from or be predicated on another legal system. Because national and international law are not dependent on one another, no hierarchy can be established between them. Second, the two legal systems cannot clash with one another. Third, provisions of international law must be translated into national law in order for them to have legal force at the national level.  

The dualist argument is, however, inherently dubious. The scope of international law has evolved to include more than just states. Nowadays, a wide range of entities are covered by international law, including private citizens, non-independent territories, national minorities, international organizations and organs, and rebel groups. Finally, international law retains the authority to regulate individuals within nations, despite the fact that the field of law is still evolving. 

Structural distinctions between national and international legal systems are merely expressions of varying degrees of integration between national and international societies. The extent of national law has advanced to a new degree. The Law Number 39 of 1999 concerning Human Rights and Law Number 26 of 2000 concerning Human Rights Courts serve as the foundation for the protection and upholding of Human Rights in Indonesia.