Achmad Shiva’ul Haq Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
Globalization
has brought significant changes to national legal systems in various countries,
including developing countries such as Indonesia. The flow of globalization has
not only affected the economic and political spheres but has also encouraged
the harmonization of law between national legal systems and international legal
norms. Legal harmonization is essentially a process of adjusting national
regulations to international standards in order to create legal uniformity in
global relations. In practice, legal harmonization is often carried out through
the ratification of international treaties, the adoption of global standards,
and the adjustment of national regulations to the requirements of international
organizations and global economic cooperation (Friedman, 2001).
Although legal
harmonization aims to create legal certainty and international integration,
this process also raises issues concerning national legal sovereignty,
particularly in developing countries. Developing countries are often in an
unequal position when dealing with developed countries and international
institutions. As a result, legal harmonization sometimes reflects global
interests and international market demands more than the needs of domestic
society. Therefore, legal harmonization must be critically examined so that it
does not undermine the state’s capacity to protect public interests and
exercise its legal sovereignty.
One concrete
example of international legal harmonization can be seen in the field of
intellectual property rights through the implementation of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is part of
the World Trade Organization (WTO) system. The TRIPS Agreement requires WTO
member states, including Indonesia, to adjust their national regulations to
international standards for the protection of intellectual property rights,
such as patents, copyrights, trademarks, and industrial design protection (WTO,
1994).
Indonesia has
subsequently undertaken legal harmonization by enacting and revising various
laws and regulations, such as Law No. 13 of 2016 on Patents and Law No. 28 of
2014 on Copyright. This harmonization aims to enhance legal certainty for
investors and global industry actors as well as to strengthen Indonesia’s
integration into international trade. However, in practice, such harmonization
also gives rise to a number of impacts on national legal sovereignty and public
interests.
One of the main
impacts of TRIPS harmonization is the reduction of national policymakers’
capacity to independently formulate legal policies. Developing countries are
required to adjust their domestic regulations to international standards that
are largely designed based on the interests of developed countries and
multinational corporations. As a result, the government’s policy space becomes
limited because every national regulation must comply with international
obligations. In the context of patent law, for example, states cannot freely
regulate patent limitations if they are deemed inconsistent with TRIPS
protection standards.
Another impact
is evident in the protection of public interests, particularly in the health
sector. Strict patent protection for medicines often leads to high drug prices
due to the monopoly of multinational pharmaceutical companies. This situation
makes it difficult for poor communities in developing countries to access
essential medicines. In some cases, developing countries face difficulties in
producing generic drugs because they are constrained by international patent
regulations. This demonstrates that international legal harmonization does not
always align with domestic social needs and public interests (Stiglitz, 2006).
In addition,
international legal harmonization also affects accountability mechanisms in the
formation of national law. In many cases, the harmonization process is carried
out more due to international pressure and global economic interests rather
than domestic public participation. As a result, society often does not have
sufficient space to participate in the process of drafting regulations related
to international obligations. This condition may lead to a democratic deficit,
as national legal policies are more influenced by global actors than by the
aspirations of the people.
Nevertheless,
international legal harmonization also has positive implications. International
standards can help developing countries improve the quality of their domestic
regulations, enhance legal certainty, and expand access to global trade and
investment. In the field of intellectual property rights, legal harmonization
can encourage innovation, the protection of intellectual works, and the
development of the national creative industry. Therefore, the main issue does
not lie in harmonization itself, but rather in how states are able to maintain
a balance between international interests and national interests.
In my view,
developing countries such as Indonesia should implement legal harmonization
selectively and based on national interests. The state should not merely act as
a passive recipient of international norms, but must be able to adapt their
implementation to domestic social, economic, and societal needs. In the context
of TRIPS, for example, the government needs to maximize available legal
flexibilities, such as the compulsory licensing mechanism for the production of
generic medicines in order to serve public health interests.
In addition, the
government needs to strengthen public participation in the process of
international legal harmonization. Every formulation of regulations related to
international obligations must involve academics, civil society, national
business actors, and affected community groups so that the resulting policies
are more democratic and accountable. Transparency in international negotiation
processes is also highly important so that the public is aware of the
implications of international commitments undertaken by the government.
Another policy
recommendation is to strengthen national capacity in international legal
diplomacy. Developing countries must possess human resources and institutions
capable of conducting international negotiations effectively so that they are
not always in a weak position vis-à-vis developed countries and global
corporations. Moreover, legal harmonization should not be oriented solely
toward global economic interests, but must also take into account the
principles of social justice, human rights protection, and public welfare.
Thus,
international legal harmonization is an unavoidable consequence of the era of
globalization. However, such harmonization must be conducted critically and
proportionately so as not to reduce national legal sovereignty and the
protection of public interests. Developing countries must ensure that
international integration remains aligned with the constitution, the interests
of the people, and the objectives of a democratic rule of law. Therefore, the
balance between global openness and the protection of national interests
becomes the key challenge in addressing the legal dimensions of globalization
in the modern era.
References
Friedman, L. M.
(2001). American law in the 20th century. New Haven: Yale University
Press.
Stiglitz, J. E.
(2006). Making globalization work. New York: W. W. Norton & Company.
Law of the
Republic of Indonesia No. 13 of 2016 on Patents.
Law of the
Republic of Indonesia No. 28 of 2014 on Copyright.
World Trade
Organization. (1994). Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement). Geneva: WTO.
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