CHAPTER I INTRODUCTION

1.1 Background Issues International agreement is an agreement made under international law by some people to be a state or international organization. A multilateral agreement made by some parties that govern the rights and obligations of each party. Bilateral agreements concluded between the two countries. Acceleration in various aspects of life have changed "life within" to "life together". The implications of a unified life is what is now called globalisasi.1 Sekalian nation in any corner of the world, are now connected, uplifted, co-opted into a pattern of life. Satjipto Rahardjo, words of Wallerstein, said that globalization is a process of formation of the world capitalist system has brought the nations of the world division of labor drawn into the capitalist economy. The establishment of institutions such as the WTO (World Trade Organization), a kind of economic cooperation forum of APEC (Asia Pacific Economic Cooperation), Europe united in EEC (European Economic Council), and others are some examples of the merging trend patterns. It can not be denied how the territorial boundaries of a nation state is no longer a barrier for economic activities is rapidly increasing. Similarly land operation of an increasingly global legal work. Above phenomenon, a real once with the development of the term that indicates dilampauinya traditional boundaries and national territory of a country, such as the term transnational corporation, transnational capitalist class, transnational practices, transnational information exchange, the international managerial bourgoisie, trans-state norms, and others. In the development of human life with the more likely it knows no national boundaries, may be an agreement between countries in resolving the issues set forth in the form of an international treaty is an increasingly important source of law. The problem, as more and more transnational issues that require the setting range is only possible with an international treaty instrument. That is because the treaty has successfully created a new legal norms are needed to regulate the relationship between countries and between the countries with greater volume, intensity is stronger, and the more complex material. 1.2 formulation of the problem based on the description above authors formulate some problems as follows: 1., Did in Indonesia has been ongoing nationalization process norms of international law? 2. how was the nationalization of international law norms that happen? 3. true that globalization has implications for the operation of the instrument and the law? 4. Concrete efforts are what manner should be taken in dealing with the complexity of the changes due to the process of globalization? 1.3 Objectives of Writing In detail, the purpose of this paper is intended to explore answers to a number of issues raised above. From the responses are expected to be able to understand further how far the implications of globalization on national legal instruments. Ideally hope the author is recommending a handful of ideas about how models should be considered to be pursued in the most harmonizing laws among allied countries in Southeast Asia ASEAN).

CHAPTER II DISCUSSION

2.1 Review Library a prevalence when sovereign nations want a problem solved through the norms that are prepared on the basis of mutual agreement with the purpose and specific legal consequences, it was formally born in the form of an international treaty. Legal bibliography guide the reader to understand the international pengertianperjanjian as follows: "... the agreement held between members of the community of nations and aims to lead to certain consequences Laws In such a context referred to above, the treaty divided into two categories, namely: "law making treaties" and "treaty contracts". "Law making treaties", is an international treaty that contains legal norms that can be universally applicable to members of the community of nations; thus categorized as international agreements that serve as direct sources of international law. While international agreements that are classified as "treaty contracts" contained provisions governing the relationships or specific issues between the parties to enable it alone, so it only applies exclusively to the participants of the agreement. Therefore, international agreements are considered treaties contracts not directly a source of international law. The tendency of the growing importance of international agreements in regulating a variety of problems, it not only takes place in the field of public international law, but also takes place in the field of private international law (HPI). This is shown for example by the efforts of a number of countries since the late 19th century through several conferences in the HPI, which was held in The Hague, which among other things aims to prepare the unification of the rules of HPI. As is known, each independent and sovereign country has its own system HPI-alone, so that each country's HPI norm not the same. To overcome the difficulties that arise in the event of problems involving two or more states, countries held an international cooperative effort to prepare the conventions aimed at the creation of unification in the field of law, particularly civil law. However, the efforts were not intended to make uniform throughout the internal legal system of the countries participants of the conference, but just trying to do the uniform rules of HPI. It is expected to issuespecific civil law problems will be achieved unity in resolving the issue by the judicial bodies of each participating country.

Knowingly or not, transnational activities will influence the direction and development of the national law of nations. Influence of, among others, appeared in his form: "(i) the fact that the experience of transnational legal process of nationalization, (ii) otherwise transnansional arena for a practice of the law wide open, and (iii) more so how the forces and logic- logic at work in the economy, the state, and the international order, has an impact on the field of law. In this regard, Satjipto Rahardjo, Max Weber pointed to "a pioneer who saw the close relationship between the emergence of the modern law of capitalism which means that Weber saw capitalism as the cause of the change in type from traditional to modern law" .10 new phenomenon where capitalism has considered as the cause of change in the type of law, it appears also in Indonesia, among others, in the field of hukumyang undergone a process of nationalization of the rules of international law. The process that takes place among others, acceptance of various sets of norms are realized through an agreement countries, both bilaterally and multilaterally. In the

international treaty law such acceptance known as endorsement or ratification (ratification). Viena Convention on the law of Treaties 1969 to give meaning to the ratification as follows: "ratifications means in each case the international act so named whereby a state establishes on the international plans its consent to be bound by a treaty", [Art 2 (1) b]. Ratification here is the act of a country that is emphasized by giving his consent to be bound by an international treaty. Therefore, the nationalization of international legal norms in a Basically, the state is a process in and acceptance of transnational norms into the national legal order of a country. Furthermore, these norms become part of the positive law of the country.
Indonesia, entered the century in which the imaginary borders of national states, the process of preparing a model law norms through ratification of the above set of transnational norms, a conditio sine qua non. It was considering Indonesia has boldly and firmly declared itself to other countries with similar life enters the global arena in the next decade. On the other hand, what the above is referred to as transnational arena for the practice of law has also been created. For example, commercial dispute resolution mechanism involving multinational parties, almost certainly has more or less shifting roles and competencies of the district court. There are symptoms to the exclusion of conventional ways to resolve conflicts through legal institutions named state court. Moreover, if it's commercial dispute involving multinational parties. The perpetrators of multinational trade partner with commercial actors Indonesia, from the beginning has been to assume that resolving the conflict through the institutions of state law is often slow and difficult to obtain certainty and fairness. The assumption that "meminorkan 'performance on the court of course still need further diuktikan through an accurate and in-depth research. But the growing phenomenon has given rise to an alternative institution for the settlement of disputes are considered to better accommodate user expectations in the form of Alternative Dispute Resolution (ADR). Despite the steps taken by Indonesia might be a little bit late, but faced such a global transformation, the government also enacted the Law on Arbitration and Alternative Dispute Resolution No. 30 of 1999. Whatever impression, of course, the move was meant as an effort to answer the demands of acceleration and dynamics of an increasingly complex society. It can not be denied, too, that the emergence of this Law may be the impact of power and economic logic of capitalism in the era of the great influence on the law. Economic logic suggests that "the speed and accuracy of trade opportunities is directly proportional to the material advantages to be gained 9", has been profoundly implicated. The proof, commercial actors who have disputes with niaganya partners will always try to resolve it via the quick resolution. Therefore, conventional institutions named district court considered much less accommodating to their demands. Although the court's competence to resolve commercial disputes tend to be shifted by the other forum is considered more provide the acceleration, but in some ways the role played by the district court is still very significant and almost not easy to shifted to another forum. For example only, in which case the award was not executed voluntarily by the side, then the execution of such decision will return to court competence. Similarly, the decision handed down by the arbitration outside Indonesia, if you want requested recognition and implementation in the territory of the Republic of Indonesia, such a decision must first obtain the exequatur from the Chairman of the District Court of Jakarta Pusat.11 Knowingly or not, the objective conditions experienced by Indonesia from day to day is a testament to that as a member of the community of nations Indonesia increasingly co-opted into the arena and the global economic arena. Until the phenomenon of legal institutions and the country was truly devastating implications in the context of the international arena. The important question that arises then is whether the progressive efforts that have been and will be done in Indonesia to meet the increasingly complex global situation now?

One thing for example, the Asia-Pacific region faces a future free trade area, would not want Indonesia must reconsider the legal norms that have been available and legal institutions segeramembenahi formation models in a systematic and planned. It becomes absolutely necessary thing to do, considering the future emergence of commercial dispute cases as a result of the ongoing multinational commercial transactions are unavoidable. Therefore, specifically related to the Civil Procedure Code for court reform are urgently required. The reform process by replacing the het Herziene Indonesisch Reglement (HIR) by the new law is still not enough. In the plains the same time, an agreement ratified bilateral and multilateral international agreements regarding civil procedural law for the judiciary, it is especially appropriate action. Why is it becoming increasingly important? Therefore the cases that arise and the resulting decisions are no longer just a national local nuances. Subject and object of commercial dispute will happen will involve humans (other legal subjects), goods, and services from different countries with backgrounds in different legal systems as well. Even plunger forum also may not only fora non-foreign litigation only, but may also come from foreign litigation forum (read: judges of national courts of other countries) which shall be present in Indonesia and asked to be executed because the object of dispute was located in territory of the Republic Indonesia.Atas basis of such reasoning, then even though the model of international agreements in the field of civil procedural law on the judiciary, which the following has been somewhat archaic, but as a model for the establishment of the norm, it is probably still relevant referenced. Some examples are presented is derived from the conventions that have been successfully formulated in several events the International Conference in The Hague. Why is the model of the formation of such norms, the authors considered still viable referenced? Therefore, the problem is not with the old or new issue published, but in a format that can be referenced as a model format formation. Therefore, arguably universal format such can also be used in various areas of the countries, as long as have the same goal of creating a harmonized legal system of the State. countries. Harmonization between the legal system of sovereign states, of course the more urgent to be done in the context of a global society. Thus, it seems quite relevant conventions if some examples below scrutiny as a model format that can be considered for adoption preparation for the ASEAN region, for example. 1. Convention Relating to Civil Procedure, 1954. (Convention on the Law of civil procedure in the judiciary, in 1954). 2. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965. (Convention on judicial submission of official documents to the parties who are abroad in civil and commercial matters, in 1965). This Convention is basically a revision of the first chapter of the Convention of 1954, which performed at the Hague Conference of 1964 to 10. 12 3. The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971. (Hague Convention on Recognition and Enforcement of Foreign Court Decisions in Civil matters and Trade, 1971)

2.2 Analyse Case nationalization as inevitable The nationalization of the norms of international law in Indonesia has basically been going on since a long time, at least since Indonesia gained sovereignty. Efforts are made of course in order to adapt to existing norms and policies in the community of nations. Although overall the author does not intend to specify and detail one by one, but some of them are looking very prevalent in certain areas would be exemplified. During the New Order, of course attempts acceptance of international legal norms into national law by the state's dipositipkan done. Not only because the New Order regime's longest and dominant power in the next age of Indonesia's independence, but indeed as early New Order Indonesia was the economic development process begins by attracting foreign capital. By

because it was the era of capitalism in Indonesia formally arguably began when Law No. 1 of 1967 concerning Foreign Investment promulgated. Following the actions of the New Order government invited foreign investors to stimulate the economic development efforts of the people of Indonesia, began a systematic and continuous process of nationalization of the rules of international law occurred. Initiated a process of nationalization of the above, the rules of international law, including the first time a national legal norms positive in Indonesia is "Convention on the Settlement of Investment Disputes in: Netherlands Reports to the twelfth International Congress of Comparative 13 Between States and Nationals of Other States" . 'Convention on the Settlement of Disputes between States and foreign citizens on Investment' is diakseptasi by the Government of Indonesia through the form of the instrument of ratification of Law No. 5 of year 1968.14 substantially Law. 5 of 1968 contains only five (5) chapters. This means materially norm substance that contains commands, prohibitions, and others from the international convention adopted in full and then became part of the positive law of Indonesia. Meanwhile Law. 5 of 1968 formally and materially function solely as an instrument which is used as a medium to declare the attitude of the Government of Indonesia. In the context of the nationalization of the norms of international law, the media declaration was of course very important to receive all the rights and obligations and the consequences of all the legal norms contained in international conventions, because the relevant norms be valid and binding later all the people of Indonesia. After more than a decade beyond the age of the Law on Foreign Investment to be instrumental in the formation of the era of capitalist Indonesia, presumably intensity commercial relationship between foreign nationals with their Indonesian counterparts take place simultaneously also reciprocal. Intensitashubungan trade among them of course is not always smooth with no problems. The emergence of friction to the larger dispute between commercial actors that need completion, it is rather difficult to avoid. As a result, new demands emerge when institutions of their state law called the district court are less able to answer the expectations of acceleration in resolving commercial disputes between them. At that time the Government of Indonesia will be forced to answer the demands of community commercial actors. When disputes arise between communities that commercial actors are not resolved by the district court institutions in Indonesia, meaning that the state dominance in resolving the dispute has been shifted by the forum chosen by the parties. Law. Sydney-Melbourne, 1986; TMC Asser Institute--The Hague, 1987, page 004. 14 The forum can be institutional, can also ad hoc. Similarly, civic forum, could Indonesia or foreign nationals may also. When the demand for recognition and execution of foreign arbitral awards come in Indonesia, 15 new questions arise about which instruments and norms as the reference for the purposes of recognition and execution of such decisions. At that time, the Supreme Court disagreed with the Court of Jakarta Pusat.16 Presidential Decree No. 34 of the year 198 117 on Ratification "Convention on the Recognition and Enforcement of Foreign arbitral awards" are considered by the Supreme Court still require implementing regulations. As a result, the arbitration decision handed down in foreign countries can not be executed by the District Court in Indonesia.18 long enough and protracted issues surrounding the recognition and execution of foreign arbitral awards in Indonesia. The causes include the establishment attitudes and the Supreme Court itself which is always filled with doubt. Even after the Supreme Court Regulation No. 1 199 019 issued, almost no cases of request execution of foreign arbitral awards in Indonesia Supreme dikabulkan.Mahkamah always rely on the issue of "public order". Until none of the foreign award is considered qualified by the Supreme Court and is considered contrary to public order Indonesia. 14 See Sunarjati Hartono. Some Transnational Issues in Foreign Direct Investment in

Indonesia; (Dissertasi). Bandung: Binacipta, 1972, page 122. 15 See the Central Jakarta District Court Decision No. 228/1979 dated June 10, 1981 in the case of the Navigation Maritime Bulgare (the petitioner) on PT Nizwar in Jakarta (as a defendant). In S. Gautama, Indonesia and International Arbitration. Bandung: Alumni, 1986, page 70.16 Although the Central Jakarta District Court through its adoption has been granted on the execution of the arbitration award that punishes London PT Nizwar in Jakarta to pay a certain amount to the Navigation Maritime Bulgare, but the Supreme Court had other ideas. 17 As instruments to ratify the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York on June 10, 1958. President Order was established and promulgated on August 5, 1981. Check Supreme Court No. 18. 2944/Pdt/1983, dated 29 November 1984. Apart from the problem of recognition and execution of the various likulikunya, relevant and interesting to study in this regard is the problem of enforceability Convensi instruments ratified by Presidential Decree No. 34 of 1981 on top. When you listened carefully, endorsement Convensi the latter, too, is one manifestation of the process of nationalization of the norms of international law in Indonesia. Imagine, without having to go through the debate in parliament, a substance derived from the norm above Convensi fully accepted to be part of positive legal norms Indonesia. When assessed by classifying legal norms conventionally, it seems the two conventions that are part of the Indonesian national law through the ratification process of the above are in the public domain of formal law. Ie a set of rules of law which contains rules on how to ensure compliance with the substantive law by means of institutions (read: forums; able to litigation and non-litigation) and the process (read: proceedings). Meanwhile, the level of international legal norms material also occurs acceptance process. Several national convention ratification instrument intended to include among others the following note: Ratification of the International Telecommunication Convention (International Telecommunication Convention) Nairobi, 1982, the national instrument of Act No. 11 of 1985; Ratification of the United Nations Convention on the Law of the Sea (United Nations Convention of the Law of the Sea) New York 1982, the national instrument of Law No. 17 of 1985; Ratification Convention Establishing the Multilateral Investment Guarantee Agency, Washington DC, 1986, with the instrument of ratification of the Presidential Decree No. 31 of 1986. Assessed by the parties to enable it, the convention above may be classified as a multilateral treaty, the treaty made between many pihak.20 While based substance, 20 See Footnote No. 8 on page 4 above. 16th uncategorized law making treaties. Such categories as international treaties that gave birth to a new norm of international law, thus putting the provisions of law or the rules of the international community in the sense keseluruhan.21 meantime, if observed by the third party, ie 22 countries that do not participate in negotiations during labor agreement, apparently also including law making treaties. That is because such a convention was always open to others who originally did not participate in the agreement because the agreement is governed by the common issues that concerned with all members of the community internasional.23 It may be very closely related to the formation of capitalism in the era nationalization of the rules of international law, and global situation

implications for the types of national law. In this context it seems relevant when the expression following the two leaders in a groove think the synergy. Wallerstein said, that "globalization is a process of formation of the world capitalist system." On another occasion, Weber described the survey results that "capitalism is the cause of the change of the legal type from traditional to modern." As a result, the global situation which gave rise to the world capitalist system, has implications for the type of law that, from traditional to modern, from local laws that are not written into the written law, and national laws to transnational law. Presumably the countries that have allowed himself co-opted by the global situation, it is likely legal products no longer enough to rely on legal institutions if sematamata local-national products in the form of codification of the law of all materials is done by the parliament and the government, but rather a conditio sine qua non for mengakseptasi products of transnational law.
HARMONIZATION RULES OF LAW AMONG THE ASEAN COUNTRIES AS A FORM OF COOPERATION a region Presumably, for Indonesia will be more efficient if further optimize collaborative efforts, particularly in the areas of law in antaranegara ASEAN member countries. Cooperation will in turn meet the realization of legal harmonization among ASEAN member countries. Harmonization of laws referred to can be described as an effort to make the process carried out by the national law of the member states of ASEAN have a principle or a similar arrangement of similar problems in each jurisdiksinya.64 Harmonization in the field of law is one of the important goals in organize legal relations. Moreover, ASEAN has agreed to establish AFTA as the trade area countries in Southeast Asia. Cooperation in law that led to the harmonization is important that relationships are governed by the laws of the countries will be in line or not so different in its application to the applicable provisions of the country lain.65 64 See Kantaatmadja Komar, "Law Harmonization of ASEAN Countries" . Working Paper At the National Simosium Legal Aspects of Economic Cooperation between ASEAN countries in the framework of AFTA; UNPAD Law School, Bandung, February 1, 1993, pages 3-4. 65 See E. Saefullah, "Law Harmonization among ASEAN Member Countries"; Working Paper on the National Symposium on Legal Aspects of Economic Cooperation between ASEAN countries in the framework of AFTA; UNPAD Law School, Bandung, February 1, 1993, page 1. 31 E. Saefullah further noted that: As a basis for implementing the legal cooperation between ASEAN member countries are in the Bangkok Declaration of 1967 as the official document establishing ASEAN. Article 2 sub 2 of the Declaration states that the aims and objectives of this organization, among other things, "... to promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principle of the United Nations Charter ... ".66 The move to the next pursued cooperation among other agreements as outlined in the ASEAN Bali Concord of 1976. The agreement was confirmed that the implementation of cooperation among member States, should be the "... study on how to develop judicial cooperation Including the possibility of an ASEAN Extradition Treaty ..." 67 However, the realization of legal cooperation to achieve the harmonization of laws between states ASEAN members it is not easy. Because each ASEAN member country should strive for mutual understanding that the ten ASEAN member countries have fundamental differences in terms of good background history, law, and culture. Pluralism legal system in the ASEAN region is one of the basic obstacles. Therefore, the efforts and progress achieved by the organization of these

countries are not as bright and as soon aspired. The presence of the same principles in itself is a success, although implementation is still bervarietas arrangements for local conditions. Various attempts to follow up on the various agreements continue. Among others, the meeting of the Minister of Justice and Attorney General of ASEAN in Bali on 11-12 April 1986, has produced documents on the ASEAN Ministerial Understanding Organizational Arrangament 66 Ibid., Page 3. 67 E. Saefullah, Op. Cit., Page 3. 32 for Cooperation in the Legal Field. Of the meeting at least have achieved three aspects of legal cooperation among ASEAN countries. These three aspects are: (i) the exchange of legal materials, (ii) co-operation in the field of justice, and (iii) cooperation in the field of legal education and research. Actually, the second aspect of the cooperation in the field of judicial cooperation has long pioneered by Indonesia to the Kingdom of Thailand in the form of bilateral agreements. Bilateral cooperation in the judicial field between between Indonesia and the Kingdom of Thailand has achieved much before the Document Understanding on the ASEAN Miniterial Organizational Arrangement for Cooperation in the Legal Field of 1986, which among other things resulted in three aspects of cooperation. Agreement on Judicial Cooperation between the Republic of Indonesia and the Kingdom of Thailand of 1978, has been proclaimed as a model for subsequent agreements between the countries of ASEA CHAPTER III CLOSING 3.1 Conclusion as well as the cover of this writing, there are some things that need rethinking presumably in order to further the development and construction of legal institutions in Indonesia in particular. Hope the authors, the government would not be late to set the pace structuring various legal institutions in this country before the arrival of mondialisasi commerce arena. First, welcome the arrival of the era of commercial mondialisasi where territorial boundaries of a country increasingly imaginary, every country including Indonesia to prepare a variety of instruments to support the smooth interaction between people from different regions. Of course, the norm as an instrument for the legal field are also strongly urged to be prepared properly. This is so important, because the activity of trade of goods and services become the main feature of the global community, if it appears in a commercial dispute cases, the commercial actors require completion of fast-paced, precise, and accurate at the same time. Secondly, Observing the possibilities described above, of course, the demands of the trade is something that can not be ignored by any governments. Thus the structuring efforts of various institutions and legal institutions to support the above conditions urgently required. For the case of Indonesia. Model structuring legal institutions through codification method that has been run often blamed as too slow, so that the rule of law always lags behind the facts. There are a number of reasons why the arrangement of the rule of law through codification was that? One of them is due to draft legislation requiring a lengthy process and cost you a bit. In fact, when the Act was enacted and may be the fact that the dynamic demands of society has changed and different. Thirdly, On the basis of the above reasons, it seems prudent when the model structuring and legal guidance that the Indonesian government should not solely rely on models of codification. The act of ratification of various multilateral treaties and bilateral agreements with the manufacture of friendly countries are conditio sine qua non for a lot more done in Indonesia in facing the future with

increasingly complex problems. Such international agreements on expected more accommodating because usually the substance has been specifically set up a certain thing. Thus, in turn, such an agreement will be able to minimize the gaps. Fourth, the creation of international agreements with countries in the ASEAN region that has been initiated so far, probably needs to be continued by Indonesia. In addition in order to harmonize efforts kaidahkaidah law among countries with different legal systems, as well as efforts towards establishing an ASEAN convention in order to overcome the legal issues with respect to the effectiveness of the upcoming AFTA agreement. If ASEAN Convention models may be realized, it is expected that the broader scope can also be done. Preparing pemenyusunan APEC convention is another attempt broader, because the problem that will arise within the framework of the interactions between the countries come together in agreement Asia Pacific Economic Cooperation will also be very complex. Fifth, If efforts uniform legal order through an agreement between countries in solving various problems that arise can be done through the above ways, the settlement gap due to differences in legal systems, is expected to be encountered. In turn, acts of ratification of multilateral treaties or bilateral agreements creation will be able to be an instrument of harmonization of laws between states despite different legal systems REFERENCES Agrawala, SK, (eds.) Essays on the Law of Treaties. Orient Longman: New Delhi, 1972. Brownlie, Ian, Basic Documents on International Law. Clarendon Press: Oxford, 1974. Budiarto, M., Issues Extradition and Security Protection of Human Rights. Jakarta: Indonesia Ghalia, 1980. Dorman, Peter J., Running Press Dictionary of Law. Philadelphia: Running Press, 1976. Komar, Mieke, Some Basic Problems of the Vienna Convention of 1969 on the Law of Treaties. Lesson Materials International Treaty Law, FH Unpad, London, 1985. 39th Kusumaatmadja, Mochtar, Introduction to International Law. Bandung: Binacipta, 1978. KUSUMOHAMIDJOJO, Budiono, A Study on Operational Aspects of the 1969 Vienna Convention on the Law of Treaties. Bandung: Binacipta, 1986. Rahardjo, Satjipto, "Legal Development in Indonesia in the Context of Global Situation"; Issues in the Study of Law and Development PERSPECTIVE. Volume 2 Number 2 July 1997 Edition, page [1-10]. Saefullah, E., "Legal Harmonization among ASEAN member States"; Working Paper on the National Symposium on Legal Aspects of Economic Cooperation between ASEAN Member States in the

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