International Law Itself And Tie

1. Nature of International Law ItselfThe international community governed by international law is a law and order coordination from a number of countries, each independent and sovereign. Thus, unlike the case with the national legal order (which is subordinated), in the orderly coordination of law (international law) there are no institutions that disangkutpautkan with the law and its implementation:- In international law there is no executive power;- In international law there is no legislative body;- In international law there is no judiciary (judicial);- In international law there is no police agencies.The institutions or bodies above are the institutions necessary to enforce the enactment of a provision of law.Due to circumstances so that some groups denied the binding nature of international law, such as Hobbes, Spinoza, Austin. According to John Austin, international law is not law but merely a positive moral rules (rules of positive morality). But Austin's opinion was refuted by two things:• First, the absence of law-making body or building does not mean there is no law. For example, customary law;• Second, the issue must be distinguished between the presence or absence of law and the characteristics of effective law. The absence of institutions associated with the body of law in international law (executive, legislative, judiciary, police, etc.) are the characteristics or signs that international law has not been effective but that does not mean that international law did not exist.


2. Basic Theories of International Law Binding StrengthIf, in fact, international law has no legislative, executive, judicial, and police but also the fact that binding international law, then the question arises: why international law is binding? How is the explanation?In this relationship has arisen some theory or doctrine that tries to provide the justification of binding international law, namely:(1) School or the Doctrine of Natural Law;(2) School or the teachings of Positive Law; and(3) French School.

(1) School / Doctrine of Natural Law.According to the school of Natural Law, international law binding because it is part of "natural law" that applied in the life of nations. Countries subject to or bound by international law in relation antarmereka because international law is part of a higher law, namely "laws of nature." The characters of this school, among others, Hugo Grotius (Hugo de Groot), Emmeric Vattel, etc..The largest contribution doctrine or school of natural law to international law is that it provides the basis for the formation of an ideal law. In this case, by explaining that the concept of international society is a necessity of life as instructed by reason (ratio) of human, natural law schools actually have laid the foundation for the importance of rationality in an orderly coexistence and peace between nations-nations of this world even though they have home- proposal descent, outlook on life, and values ​​different.However, it also contains a fairly fundamental weakness that is not clear what is meant by "natural law" it. Consequently, the notion of natural law it becomes very subjective, depending on the interpretation of each person or experts who advise it.

(2) School / Positive Law DoctrineThere are several schools of thought which belong to the group Positive Force or the Doctrine of Justice, namely:a. School or the State or the Theory of the Will Theory of State Sovereignty;b. School or the Will Theory of Joint Countries;c. School of Vienna (Vienna School of Thought).a. School / Theory of the Will of the State.The doctrine or school of thought was based on the theory of state sovereignty. In general, the core of the teachings or school is as follows: because the state is sovereign, then the state is also the source of all law. International law is binding on the countries because those countries had the will or willingly subject themselves or bind themselves to international law.For this school, international law is not something that is higher than the willingness of the state (national law) but is part of national law (cq constitutional law) that governs the relationship outside of a country (auszeres Staatsrecht). The leaders of this school, among others, Georg Jellinek, Zorn, etc..Criticism and simultaneously the weakness of this teaching is that teaching is not able to explain what if those countries do not want to unilaterally declare longer bound to international law, whether international law is thus no longer binding?This teaching is also not able to explain the new countries of birth are directly bound by international law regardless of whether they agree or not?

b. Theory of the Will of the Joint School or countries.This school attempt to close the weakness School / Theory of the Will of the State as has been dikemukan above. According to this school, international law is binding not because not because the will of the countries individually, but because of the will together with the countries in which this common will of a higher rank than the will of the countries individually. It is said also by the schools of this that, unlike the case with the will of the state alone, this joint will not need to be stated explicitly or specific.This is the essence of the doctrine advanced by Triepel Vereinbarungstheorie. Through his teachings were Triepel really tried to base his theory on how binding customary international law. That is, by saying that the common will of states to be bound by international law need not expressly or specifically he really mean to say that countries that have expressed their consent to be bound by the implicit or tacit (implied).Although have been trying to answer the criticism of weaknesses School / Teoeri Will of the State, School / Theory of the Will Together these countries still contain weaknesses, namely:• First, schools are not able to provide a satisfactory explanation to the question: even if countries are not allowed to withdraw consent to be bound by international law alone, what if these countries jointly withdraw consent to be bound by international law? Does this mean that international law becomes no more?• Second, by basing it binding international law on the will of the state, then (as well as on school / Theory of the Will of the State), this sect was true only of international law consider it only as a legal agreement between the countries. This opinion is, as already mentioned above, has proven to be an opinion that is not true. Because international law is not simply born out of international agreements.

c. Vienna SchoolInherent weaknesses in the schools of which laid the foundations of international law binding on the will of the state (which is often also referred to as flow voluntarist) gave birth to new ideas that are no longer laid the foundation of international law binding on the will of the state but on the norm or the rule of law which has existed beforehand that regardless of the desired or not by the countries (school of thought is often referred to as flow objektivist). Famous figures of this genre is Hans Kelsen that his school known as the School of Vienna (Vienna School of Thought).According to Kelsen, there and tied by the rules of international law are based there and tied the other legal rules is higher. There are rules and tie it higher law was based on the rule of law there and tie it higher again. So forth to arrive at a summit pyramid rules of law called the basic rule (grundnorm) that no longer can be explained by the law but must be accepted as a hypothesis of the origin (ursprungshypothese). According to Kelsen, the basic rule of international law is the principle of pacta sunt servanda or principle.The weakness of the school or the theory is that it is indeed a cursory look that construction of this school of thought seems logical in explaining the basis of binding international law. However, this school can not explain why the rule base (grundnorm) itself bind? Moreover, by saying that the basic rule as a hypothesis, which is something that is uncertain, it means ultimately the basis of binding international law hangs on something that is uncertain. Thus, the whole construction appear logical at first thinking it eventually becomes something that hangs in the air.Furthermore, by saying that grundnorm it as a problem of unlawful or can not be explained in the law will mean the issue about the basis of binding international law eventually returned to the values ​​of human life outside the law is a sense of justice and morality - which means the same thing by restoring basic international legal tie to the laws of nature.

(3) French SchoolOne school of thought that tries to explain the basis of international law tied to the construction of thinking is totally different from the two previous school (School of Natural Law and Positive Law School) appeared in France. Therefore, the school is known as the French school. Vanguard, among others, Leon Duguit, Fauchile, and Schelle.In outline, this school tie it laid the foundation of international law - as well as other legal areas - the factors which they called "social facts" (fait social), which formed as biological factors, social, and human life history. That is, the basis of binding international law that can be returned to human nature as social beings who always had a passion to join another human life and the need for solidarity. Needs and human social instinct as it is also owned by individual states or nations (which is a collection of human beings). In other words, according to this school, tie basis of international law, as well as the basis of any legal tie, there is the social reality of the human need to live in a society.

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