Chapter I
INTRODUCTION
As we know that there are many terms of treaty which can be used by states while making an international agreement, including MoU, Convenant, Pact, Protocol and Convention. MoU is one of the terms that tend to be used by states while a treaty is made. A memorandum of understanding is an agreement between two parties in the form of a legal document. It is not fully binding in the way that a contract is, but it is stronger and more formal than a traditional gentleman's agreement.[1] And MoU is concluded by representative of parties who has full power or mandate as well. Now day, most of international relation such as defence, aid, diplomatic, and trade use MoU as the agreement. In international public law, a memorandum of understanding is used frequently. Nevertheless, sometimes there is also the problem that emerge while making a treaty whether from parties or procedural of internal government of a party. MoU on environmental cooperation between the Province of Aceh and some states of America for instance. Aceh is given a special authority by government of Indonesia to create an international Agreement with international institutions under statutory law of Aceh Governing no 11/2006. The problem is Governor Irwandi did not have full power because the technical legal instrument has not yet enacted. In Indonesia, if one statutory law does not have Presidential Legislation or technical legal instrument, then the provisions on a statutory law cannot be run. This research want to present further explanation concerning the legal basis of the MoU, full power and its legal consequence.
Chapter II
THEORETICAL BASIS
MoU is one of terms of treaty. Professor Jan Klabbers has argued that every agreement concluded between states which is of normative nature, and is not made subject to another system of law is a treaty. He sees no distinction between a treaty and a MoU, since each embodies an agreement. Sometimes, a memorandum of understanding is used as a synonym for a letter of intent, particularly in private law.[2] A letter of intent expresses an interest in performing a service or taking part in an activity, but does not legally obligate either party.[3]
In the Vienna Convention on the Law of Treaties (VCLT) requires that a MoU or Treaty can only be concluded by the person who has full power or mandate from his or her state. It is regulated in Art 7(1) of VCLT. However there are also some people who do not need full power to represent a state, they are heads of state, heads of diplomatic missions, and representatives accredited by states to an international conference or to an international organization or one of its organs. That provision is articulated in Art 7(2) of VCLT. In VCLT, the term of full power is articulated in Art 2 which is mean ‘a document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty’.[4]
In statutory law No.24/2000 of Indonesia Republic that regulated about international treaty also requires full power for a person who want to represent behalf or a whole country. The provision is articulated in Art 7(1) of the statutory and mention that ‘a person who represent government of Indonesia Republic with purpose to receive or conclude an international agreement or to be bound to a treaty need full power’.[5] In statutory law of governing Aceh, it gives opportunity to Government of Aceh to regulate anything that relate to public manners including international cooperation or relation. However, in the Statutory law No.11/2006 does not mention about full power in making international agreement because the provision of full power is regulated later in technical legal instrument for international cooperation by Aceh Government.
Chapter III
ANALYZING DATA
There is a Memorandum of Understanding on Environmental Cooperation between the Province of Aceh and several states of the United States of America (California, Illionis and Wisconsin), but the Memorandum of Understanding is still being debated about the authority of Aceh Governor, Irwandi Yusuf, to conclude the MoU is lawful or not. The MoU is signed on November 18, 2008 in California. As we know that Aceh is one of the provinces which is given a special autonomy to make international cooperation with international institution by the central government of Indonesia because there is a legal basis for making a MoU, firstly there is a MoU between Indonesia government and Aceh Freedom Movement well known as MoU Helsinki and in the point 1 of the MoU regulates about governing of Aceh. Then the sub point 1.1.1 of the MoU mentions that the statutory of governing Aceh will be statuted soon. Both parties agreed to give an authority for Aceh to develop its province including authority to build international cooperation with international institutions. Secondly, the authority is formulated in statutory law No. 11/2006. Then in 2006, the law on governing of Aceh was enacted and in Art 8 and 9 of the statutory law regulate about Aceh can create an agreement with international institutions or organizations. Aceh can create international agreement that concern in any areas except:
a. Security and defense;
b. Fiscal;
c. Religion;
d. Politic of foreign; and
e. Judicial power.
All of those exceptions are still in the authority of Indonesia Government. Nonetheless, Governor Irwandi action to create the Memorandum of Understanding on environmental cooperation is illegal because at that time there is no the technical legal instrument for international cooperation by Government of Aceh. Like another statutory law in Indonesia, the government should create a technical legal instrument for each statutory law which is enacted. In Indonesia, if one statutory law does not have Presidential Legislation or technical legal instrument, then the provisions in a statutory cannot be run.
In Art 9 (4) of UU No.11/2006 itself mentions that the further provision concerning international cooperation will be regulated in Presidential Legislation or in technical legal instrument. That means Governor Irwandi action is not legal, because when he signed the MoU in 2008, the technical legal instrument for international cooperation has not yet enacted. That technical legal instrument has enacted two years later in 2010. In addition, Irwandi signed the MoU without consult with house of representative of Aceh. Eventhough in Art 8(1) UUPA has already articulated about it. The current research reveals that the MoU on Environmental Cooperation is not included in the list of international agreement record that is created by Aceh government.[6]
According to new information which found also mention that Irwandi did not have full power to sign the MoU. When he concluded the MoU in 2008, the technical legal instrument for international cooperation has not yet produced. That technical legal instrument is enacted in Presidential Legislation No11/2010 two years later as already explained above. In the technical legal instrument for international cooperation mention that in an agreement with international institutions must put a phrase ‘Aceh Government is part of Indonesia Republic’. And in the Art 9 of its Legislation also mention that the foreign affair minister gives full power to governor or other official of Aceh Government to conclude an agreement with international institutions.[7] However when Irwandi signed the MoU, the Minister for foreign affairs did not give the full power to Governor of Aceh because the Presidential Legislation has not yet enacted. Thus, legitimately Governor Irwandi’s action is illegal.
There is no legal consequence for Aceh Govenor that did not hold a full power to sign MoU at that time, because MoU on environmental Cooperation does not create any legally binding rights or obligations and the MoU does not regulate a crusial matter or very important matter. Furthermore, the technical legal instrument for international cooperation by Aceh Government has not yet enacted. The Presidential Legislation is enacted in 2010. Probably, Irwandi signed the MoU because he knows that MoU does not binding the parties, even he is aware that his action is illegal because, the technical legal instrument for international cooperation has not yet produced. Perhaps, he signed the MoU caused, he though that the MoU will give many advantages to Aceh Province. Nonetheless, from a legal perspective the MoU is unlawful, because Irwandi did not hold full power to represent behalf of state to conclude the MoU. And the provision of full power is articulated in Presidential Legislation which is the Presidential Legislation is enacted in 2010.
Chapter IV
CONCLUSION
To sum up, there is a legal basis for making a Memorandum of Understanding by Government of Aceh. First of all, the provision in point 1 and sub point 1.1.1 of Memorandum of Understanding between Indonesia Government and Aceh Freedom movement also known as MoU Helsinki. The last is statutory law No.11/2006 which is a further step of MoU Helsinki that including regulate provision concerning international cooperation. In a provision of the statutory law mentions that minister for foreign affairs gives full power to Governor or other official of Aceh Government to conclude an agreement with international organizations.
However, in case Governor of Aceh concluded MoU on Environmental Cooperation in 2008 between several states of America, the action of the Governor is illegal because there is no the Presidential Legislation of Statutory law No.11/2006 yet. And he did not hold a full power from minister for foreign affairs at that time because the Presidential Legislation for international cooperation by Aceh government is enacted in 2010. If a statutory law does not have Presidential Legislation, the provisions in the statutory law cannot be performed. Thus, legitimately the action of Aceh Governor is illegal.
Bibliography
- Vienna Convention on the Law of Treaties 1969.
- MoU Helsinki Peace Agreement, between Indonesia Government and Aceh freedom movement.
- UU No.24/2000, concerning International Treaty.
- UU No.11/2006, concerning Aceh Governing.
- PP No.11/2010, concerning Technical Legal Instrument for International Cooperation by Government of Aceh.
- Aust, Anthony. Modern Treaty Law and practice, Cambridge University Press, 2007.
[1] www.wisegeek.com on January 17, 2012.
[2] Anthony Aust, Modern Treaty Law and Practice, page 49.
[4] Vienna Convention on the Law of Treaties 1969. Art 2 Use of Terms
[5] UU No.24/2000 of Indonesia Republic, regarding International Treaty.
[6] Current research by Syahran Abrar. He is one of students in Law Faculty of Syiah Kuala University.
[7] Peraturan Presiden No.11 Tahun 2010 Tentang kerjasama pemerintah Aceh dengan lembaga atau badan diluar negeri
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