A. Definition of International Law In general international law defined set of rules and regulations that bind and regulate relations between states and other legal subjects in international society. International legal definition given by the well-known legal experts in the past such as Oppenheim and Brierly, limited to the state as the only legal actors and do not include other legal subjects. However, with the rapid development of science and technology in the second half of the twentieth century and the pattern of international relations are more complex then extends this notion that international law also deal with the structure and behavior of international organizations, supranational groups, and movements of national liberation-liberation. In fact, in some cases, international law also applies to individuals in relation to the countries. In the opinion of Prof. Dr. Mochtar Kusumaatmadja, SH International law is the overall rules - rules and principles - the laws and principles governing the relationship, or issues that cross borders - borders that international relations are not to be civil while according to Chery Charles Hyde, quoted by JG Starke he said that international law as the largest collection of legal consisting of principle - the principle of rule of conduct which the state itself felt honor bound and, therefore, must also respect the relationship between them from one another that includes:
· Rule - the rule of law relating to the function - the function of the agency or international organization, international organization that the relationship between each other, the relationship between international organizations in the country and the relationship between international organizations with individuals.
· Term - specific rules relating to the individual and the subject - the subject of law rather than state or non-States Entities along rights - the rights and obligations - obligations of individuals and subjects - subject to the laws of the country, concerned with international issues.
B. Definition of international disputes
Permanent International Court of Justice in the Mavrommatis Palestine concessions dispute (Preliminary Objections) (1924) defines the notion of disputes as: 'disagreement on a point of law or fact, a conflict of legal views or interests Between two persons. International tribunal in his opinion (Advisory Opinion) in the case of "Interpretation of Peace Treaties Case (1950, ICJ Rep. 65) states that for the presence or absence of an international dispute should be determined objectively
According to the Court, an international dispute is a situation in which the two countries have opposing views about dilaksanaken or not the implementation of the obligations contained in the agreement. Interested in this Court stated. "Whether there exists an international dispute is matter for objective determination. The mere denial of the existence of a dispute does not PROVE its non-existence ... There's Thus has arisen a situation in the which the two sides hold views Cleary opposive Concerning the questions of the performance or non performance of treaty obligations. Confronted with Such a situation, the Court must conclude That dispute has arisen internationally"
In the Case Concerning East Timor (Portugal vs.. Australia), International Court of Justice (ICJ) provides four criteria, namely the dispute:
· Based on objective criteria. The point is to look at the facts that exist. Example: The Case of the United States and British invasion of Iraq
· There is an argument based on one of the parties. Example: USA vs. Iran 1979 (Iran case). In this case the International Court in a decision not only based on the argument of the United States, but also Iran.
· Denial of an event or fact by one party about the dispute does not by itself prove that there is no dispute. Example: Case Concerning the Northern Cameroons 1967 (vs Cameroons. United Kingdom). In this case the UK states that there is no dispute between England and Cameroon, even the UK, said that the dispute between Cameroon and the United Nations. Of cases between England and Cameroon it can be concluded that the parties to the dispute is not decided whether or not there is a dispute, but must be resolved / decided by a third party.
· The existence of conflicting attitudes / the opposite of both parties to the dispute Example: Case Concerning the applicability of the Obligation to Arbitrate under section 21 of the United Nations Headquarters Agreement of 26 June 1947.
C. The Role of Law in International Dispute Settlement
International relations between countries are not always held properly established. Often the dispute is the relationship between them. Disputes can be originated from various sources of potential conflict. Potential source of conflict between countries can be frontier, natural resources, environmental degradation, trade, etc. When such things happen, international law plays a role, which is not small in its completion.
Efforts toward the settlement has become a significant concern in the international community since the beginning of the 20th century. These efforts are aimed at creating relationships between the state better based on the principle of international peace and security. Today there are several roles that international law can play in resolving the dispute:
· the principle of international law seeks to inter-state relations intertwined with friendship (friendly relations Among States), and do not expect any disputes;
· international law provides rules to countries subject to the dispute to resolve their disputes;
· international law providing free alternatives to the parties about the ways, procedures or measures should be taken to resolve their disputes, and
· modern international law merely advocated the peaceful settlement of the way, whether the nature of the dispute between states or between states with other subjects of international law. International law did not advocate violence or war.
War has been used for countries to impose their rights and their understanding of the rules of international law. The war has even been also used as one form of the action of a sovereign state. U.S. Secretary of State Lansing in 1919 stated that "to declare war is one of the highest acts of Sovereignty”. Even scholars are aware of the practice of countries which still use violence or war to settle the dispute today. Instead, the way of peace have not been seen as the rules followed in life or relationships between countries. Ion Diaconu Romania's leading scholars, among others, stated that "in many cases recourse to violence has been and Continues to be used in international relations, and the use of peaceful way and means is not yet the rule in international life" In general, international dispute resolution methods are classified into two categories:
· ways of peaceful settlement, ie when the parties have to agree to find a friendly solution.
· How to dispute resolution by force or violence, which is used or if the solution is imposed through violence.
A. The means for Peaceful Settlement of International Disputes, or Friendly.
a. Negotiations
Negotiation is a way of resolving the dispute over the most basic and oldest used by mankind. Settlement through negotiation is the most important. Many disputes are resolved by negotiation this every day without any publicity or public attention. The main reason is because in this way, the parties may oversee procedures for settling disputes, and every solution is based on the consensus of the parties. Negotiations can be conducted through diplomatic channels at international conferences or in an institution or international organization.
b. Fact Finding
Dispute resolution method is used to reach a settlement of a dispute by establishing a commission or agency to seek and listen to all the evidence that is international, that are relevant to the problem.
The purpose of the Fact Finding is the main thing is to report to the parties about the facts. While the stated goals of settlement of international disputes by way of a fact-finding, namely:
• Establish a basis for settlement of disputes between the two countries
• Overseeing the implementation of an international treaty.
• Provide information to make decisions at the international
Basic legal fact finding is used in section 9 to 36 Hague convention on the pacific settlement of Disputes in 1899 and 1907.
c. Good Offices
Good Offices is a way of resolving the dispute through the help of a third party. These third-party effort that the parties resolve their disputes by negotiation. Function of both services are the most important is to bring the parties so that they would meet, sit together and negotiate, or known by the name fasilisator.
Third-party participation in dispute resolution can be of two kinds, namely the request of the parties or third parties own initiative to offer its good offices to resolve disputes. In both these ways, there must be an absolute requirement that the agreement of the parties. d. Mediation
This is the third-party international organizations, countries and individuals. This third party called a mediator in this dispute. Usually he is the capacity as a neutral party to reconcile the parties to the dispute advise. Its main function is to find a solution (settlement) identifies, things that can be agreed upon by the parties and made proposals to end the dispute, informal, and active. In the process of negotiations in accordance with articles 3 and 4 Hague convention on the pacific settlement of Disputes (1907) which states that these proposals are given the mediator should not be considered a hostile act against a party (which was hurt).
e. Conciliation
Conciliation is a way of resolving disputes that is more formal than mediation. Usually this conciliation conciliation entity formed by the parties by agreement. Commission works to establish the settlement terms accepted by the parties, making it more formal or extensive because there are no rules and no agency or institution.
The parties to an oral hearing to the parties and may be represented by proxy. The results obtained facts konsilator (designation of conciliation) submit a report to the parties to the conclusions and his proposals, and its decision is not binding because the proposal is acceptable or not depends entirely to the parties. f. Arbitration
Arbitration usually show exactly the same procedure as in national law to the dispute which gave certain persons called arbitrators, chosen freely by the parties. Arbitration is an institution that is quite old but the new history of registering in the year 1797, in the case of Jay treaty between England and America. Governing joint mixed commission. Finish its dispute that some specific disputes that can not be resolved during the negotiations on the treaty. an important step has been taken in in 1899 when the Hague conference did not only codify the law of arbitration, but makes the foundation for the establishment of a permanent arbitration court.
PCA agencies are not "fixed" was not a court. Permanent court of arbitration itself has no specific jurisdiction. So that only 20 cases handled include Dhowe Muscat 1905 case between the English and French and the North Atlantic Coast fisheries case 1910 between England and the United States. Although there is a real shortage by Judge Manly O. Hudson, permanent arbitration court is a method and a procedure. Arbitration is essentially a consensus procedure, meaning that states can not be forced to be brought upfront arbitration unless they agree to do so. In 1966 the World Bank established the ICSID (International Centre for Settlement of Investment Disputes the). Formation of the Convention is as a result of the economic situation in the world-1960s to 1950 Especially when some of the developing countries to nationalize or expropriate foreign companies that are within its territory.
Among the cases that directly affect the nationalization and moving the World Bank established the Convention is a case of nationalization of French companies in Tunisia. The case began with the House actions Tunisia (the Tunisian National Assembly) that issued the Law on Nationalization of lands owned by foreigners (especially France) on May 10, 1964.
Countries that could be a member of the ICSID Convention is that every member of the World Bank. But countries are not members of the World Bank can become a member of the convention the origin country is a member of the Statute of the International Court of Justice. Until 1993, 105 countries have become members at this convention. ICSID is managed by an Administrative Council (Administrative Council). Each participating country has a representative convention and has one vote. This council has a chairman ex officio, the President of the World Bank. Lead agency is the organizational structure of ICSID Secretary General (Secretary). He serves as registrar (registrar or clerk). ICSID maintains a list of names to be included in an arbitration or conciliation panel. Each state party convention to appoint an arbitrator or conciliator 4 people in each of the panel list. They can be nationals or foreigners. Chairman of the Board may appoint Admintratif 10 people on each panel.
Another example in this ICSID dispute is a dispute between KPC and the government of East Kalimantan, East Kalimantan provincial government has revoked the divestment of disputes through ICSID lawsuit in 2008 when the era of East Kalimantan Governor Yurnalis Ngayoh. The impact of deprivation, the East Kalimantan provincial government will receive compensation worth Rp 285 billion, but has yet to be paid by KPC. g. Judicial Settlement.
Judicial settlement means a settlement that is generated through an established international who penagdilan as appropriate, to enforce the rules of law. One of these "public organ" for judicial resolution currently available in the international community is the International Court of justice in the Hague to replace and continue the continuity of Permanent Court of International Justice. Inauguration of the institute was held on 18 April 1946 by the board of the UN assembly. International Court of justice established pursuant to Chapter IV (Articles 92-96) formulated the United Nations Charter in San Francisco in 1945. International Court of Justice consists of 15 judges, two concurrent chairman and vice chairman, a term of 9 years. Its members were recruited from the citizens of member countries are considered competent in the field of international law. Five are from the State of the UN Security Council permanent members such as China, Russia, the United States, Britain and France.
Functions of the International Court is to resolve cases of international disputes is a State subject. There are three categories of countries, namely:
• UN member states, can automatically submit the case to the International Court of Justice.
• State not a member of the working area of the UN International Court. And that is not the work of the International Court shall submit the case to the international Court with the requirements set UN security council
• The state is not the work area (the Statute) International Court, should make a declaration to the Court subject to the provisions of international and UN Charter.
ICJ is one of the six main UN organ. But the agency has a special position compared to five other major organs. ICJ or the Court does not have hierarchical relationships with key UN agencies other. He is really as a legal institution in the courts. He nor the Constitutional Court has the authority to review (review) political decisions made by the Security Council. It uses the official name of the ICJ and not use a symbol or name of the United Nations in its decision. ICJ position is indeed unique. This position does need to be maintained. As one of the major organs of the UN, he must really show her independence as an organ or other judicial body.
Jurisdiction of the International Court includes two things: 1 Jurisdiction over disputes subject to the deposit of (the contentious jurisdiction), and 2 non-contentious jurisdiction or the jurisdiction to give legal advice (advisory jurisdiction). These temporary protection measures as well as to the jurisdiction of the Court, which is within the scope of jurisdiction of the so-called incidental jurisdiction. Under this jurisdiction, the Court has the authority to declare the enactment of a temporary protective measures, allow an intervention and to interpret or amend a judgment. As the name implies, this temporary protection measures relating to the protection of the rights of the parties while the court on its own principal ongoing disputes the legal basis underlying this jurisdiction as contained in Article 41 of the Statute of the ICJ, which reads:
• The Court shall have the power to indicate, if it considers circumstances so require That, any provisional measures the which ought to be taken to preseve the respective rights of either party;
• Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
Justify the granting of protection is derived from fundamental principles of law that was namely that the decision of a court to be effective. Therefore, it is important for the court to prevent one or both parties to disrupt the situation or try to make the other party accomplit fait.
2. Forced Settlement ways or Violence
a. War and armed non-war actions
The overall objective of war is to subdue the opponent and impose the terms of settlement of the conquered country where it has no alternative but to obey.
b. Retorsi (retortion)
Retorsi is a technical term of retaliation by a state against acts of inappropriate aatau inappropriate from other countries, the revenge is carried out in the form of legal acts hostile to the state conference in his honor insulted: for example merenggangnya diplomatic relations between the two countries , the lifting of diplomatic previllage and others. c. Repraisal
Vengeance is an action taken by states to pursue obtaining compensation from other countries to perform actions that are retaliatory. While this practice is justified retaliation only if the countries to which the reprisal is guilty of committing acts that are a violation of international. A concrete example of reprisals, such as expulsion of Hungary from Yugoslavia in 1935, which is the revenge of the murder of King Alexander of Yugoslavia.
d. pacific blockade
Peaceful blockade is an act carried out peacefully. Sometimes done as a sign of retaliation, the action is generally intended to force the state to its ports blockaded to keep the demand redress losses suffered by the state to block.
There are some real benefits in the use of peaceful blockade. This action is a far way from the violence of war and blockade compared with the flexible nature.
D. Conclusion
From the description above, the role of international law in international dispute resolution there are 4 kinds of assessments:
1. on the principle of international law seeks to inter-state relations intertwined with friendship (friendly relations Among States), and do not expect any disputes;
2. international legal rules to countries subject to the dispute to resolve their disputes;
3. international law providing free alternatives to the parties about the ways, procedures or measures should be taken to resolve their disputes, and
4. modern international law merely advocated the peaceful settlement of the way, whether the nature of the dispute between states or between states with other subjects of international law. International law did not advocate violence or war.
The presence of the institutions or dispute settlement mechanisms created by the international community in general intended for a primary purpose, namely to give way on how international disputes should be resolved peacefully. The role of international law in dispute resolution is quite important. International law does not merely require that a peaceful settlement of international law was also given broad freedom to countries to implement or utilize the dispute settlement mechanism that is both contained in the UN Charter, international treaties or conventions which the countries in dispute have bound themselves. All of these shows and the ultimate goal of strengthening international law concerning the settlement of this dispute peacefully and do not require the completion of the violence (the military).
