Understanding 2 Concepts of Public Order in Private International Law and Their Relation to Vested Rights

1) Positive Function of the Public Order Concept in Private International Law

Ensuring the applicability of certain arrangements of the lex fori (not overridden) as a result of the enactment of foreign law in a country through the Private International Law approach or Private International Law rules. Regardless of what legal issues should apply or whatever the content of the relevant lex fori rules/principles

2) Negative Function of the Public Order Concept in Private International Law

Avoiding the applicability of foreign legal rules, if such applicability causes a violation of the basic concept of the lex fori From the above discussion, we can see that the concept of public order in Private International Law forms the basis for judges/judicial institutions to override foreign legal principles that should be the lex causae in a Private International Law case. This is because these legal principles conflict with the concept of public order that exists in the community within the lex fori territory.

II. Relationship of the Public Order concept with Vested Rights

Vested Rights are the legal rights and obligations of a person acquired from a legal relationship that applies foreign law. The problem with vested rights is whether these rights and obligations should also be recognized by the lex fori? Basically, the rights inherent in a person must be respected and recognized by others as long as they do not cause conflicting problemswithpublic order within the territory of the *lex fori*. An example of the issue is that of a foreigner who marries an Indonesian citizen (WNI), with the marriage taking place abroad. A foreign marriage is considered valid in Indonesia if it does not conflict with the concept of public order, and both parties must register their marriage with the marriage registry office. Thus, all rights and obligations of the couple who marry under foreign law can obtain legal recognition in Indonesia. Another example of a problem is when a marriage under foreign law involves an element of religious difference. This is often done by couples who wish to marry but cannot do so in Indonesia. As stated in Article 2 (1) of Law 1/1974, which is reinforced by SEMA 2/2023, marriage can only be performed according to the laws of each person's religion and belief, and cannot be performed if there is a difference in religion. In practice, any interfaith marriage under foreign law can be recognized and registered in Indonesia. So, what about the rights and obligations of the marriage? The state should set aside a person's legal rights and obligations if they conflict with legislation. Furthermore, same-sex marriage has no chance of gaining legal recognition in Indonesia. The recognition of a marriage by a country means that there is legal recognition of the rights and obligations of a person who marries under foreign law.