Jurnal Hukum dan Perjanjian Internasional OPINIO JURIS Volume ...

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Jurnal Hukum dan Perjanjian Internasional

OPINIO JURIS

Volume 17 Januari —April 2015

DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL

KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA 2015

Jurnal Hukum dan Perjanjian Internasional OPINIO JURIS Volume 17 Januari —April 2015

Diterbitkan oleh Direktorat Jenderal Hukum dan Perjanjian Internasional Kementerian Luar Negeri Sejak Oktober 2009

Penanggung Jawab Ferry Adamhar, SH, LL.M Dr. iur. Damos Dumoli Agusman Redaktur Patrick S. Hasjim, S.H., M.Si; Drs. Sukarsono; Sudarsono, S.H., MM; Rofita, S.H.; Zainul Idris Yunus, S.E.; Fajar Yusuf, S.H., LL.M; Dr. Haryo Budi Nugroho, S.H., LL.M; Editor

Ahmad Saleh Bawazier, S.H., M.H., M.A.; Nenda Inasa Fadhilah, S.H., LL.M.; Santa Marelda Saragih, S.H., MH.; Vina Novianti, S.Hum.; Rike Wijayanti Octaviany, S.H., LL.M.; M. Ferdien, S.H.; Galuh Indriana Rarasanti, S.H.; Dyan Radin Swastika, S.H. Disain Grafis

Asep Hermawan; Andre Bramantya, S.H. Sekretariat Uki Subki, S.Sos, M.Si; Agustian; Sutono, S.Sos; Tasunah; Maisaroh, S.Sos. Anisa Husna, S.Hum. Alamat Redaksi:

Sekretariat Direktorat Jenderal Hukum dan Perjanjian Internasional Kementerian Luar Negeri Jl. Taman Pejambon No. 6 Jakarta Pusat Telp. +62 21 3846633 Fax. +62 21 3858044; Email: [email protected] Jurnal Opinio Juris versi digital dapat diunduh di website http://pustakahpi.kemlu.go.id/

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JURNAL OPINIO JURIS Vol. 17 Januari – April 2015

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DAFTAR ISI

Daftar Isi .............................................................................................................. iii Pengantar Redaksi ........................................... Error! Bookmark not defined. EXECUTIVE SUMMARY ................................................................................... 8 REVIEW BUKU 8 Treaties Under Indonesian Law: A Comparative Study Stefan Kadelbach ..................................................................................................... 8 Simon Butt ........................................................................................................... 51 Abdulkadir Jaelani ................................................................................................ 44 Haryo Budi Utomo ............................................................................................... 51 Prita Amalia ....................................................................................................... 102 GLOSSARY ....................................................................................................... 108 TENTANG PENULIS ...................................................................................... 109


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PENGANTAR REDAKSI

Dalam rangka menjalankan tugas dan fungsi diseminasi

informasi terkait isu-isu hukum dan perjanjian internasional,

Direktorat Jenderal Hukum dan Perjanjian Internasional telah

menerbitkan Jurnal Hukum dan Perjanjian Internasional yang

diberi nama “Jurnal Opinio Juris”.

Dalam Volume 17 tahun 2015 ini, redaksi membahas resensi

buku Dr. iur. Damos Dumoli Agusman berjudul “Treaties Under

Indonesian Law: A Comparative Study” oleh lima peresensi buku,

yaitu Prof. Dr. Stefan Kadelbach, Prof. Simon Butt, Dr. Haryo Budi

Utomo, Prita Amalia S.H. M.H., dan Abdulkadir Jaelani S.H., M.H.

M.A.

Dalam kesempatan ini, redaksi Opinio Juris juga hendak

mengucapkan terima kasih kepada para anggota redaksi terdahulu

yang telah mendapat penugasan baru di beberapa Perwakilan RI

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[email protected].

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pada Perpustakaan Hukum Digital (e-library) Kemlu yang dapat di

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dan masukannya demi peningkatan kualitas Opinio Juris di masa

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mailto:[email protected]

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Akhir kata, Redaksi Opinio Juris berharap semoga jurnal ini

dapat bermanfaat serta menjadi sarana dalam menyebarluaskan

informasi dan wadah sumbangsih pemikiran di bidang hukum dan

perjanjian internasional yang berkaitan dengan pelaksanaan

hubungan luar negeri.

Terima kasih dan selamat membaca.

Redaksi Opinio Juris


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BOOK: “TREATIES UNDER INDONESIAN LAW”

(ROSDA, 2014)

Executive Summary

Dr. iur. Damos Dumoli Agusman

[email protected] http://perjanjian-internasional.blogspot.com

1. CONSTITUTIONAL AMBIGUITIES CONCERNING TREATIES

UNDER INDONESIAN LAW

At present, the legal status of treaties under Indonesian law is still

ambiguous in nature. By using traditional monist-dualist theories as tools

of analysis and the empirical basis of comparative research, it was

revealed that the existing constitutional order of Indonesia has not

adequately addressed the legal status of treaties under its domestic law.

In practice, there are various constitutional interpretations on their

domestic status in Indonesia that are at variance with one another, and

mutually negate each another. Different interpretations have led to

different outcomes. Such various different interpretations stem from


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various constitutional ambiguities that exist in the constitutional order of

Indonesia. The ambiguities are created by the following: unclear

constitutional provisions, poorly drafted statutory laws concerning

treaties, no theoretically informed basis, and inconsistent constitutional

practices. The constitutional ambiguities have resulted in legal

uncertainty about the precise effect of treaties under Indonesian law.

The remnants of the monist legal approach of the Netherlands had

occupied the legal thoughts of many Indonesian scholars in the earlier

period of independence. Many scholars viewed that once a treaty enters

into force, it binds Indonesia. Thus the question of deciding on its

domestic status was considered unnecessary. The influence of Indonesian

constitutional experts in the years to come, coupled with the emerging

issues of non-self-executing treaties in international practice, apparently

affected such monist legal thoughts, which in turn brought up a dualist

legal view in scholarly fields.

In subsequent practice, the two conflicting theories have inadvertently

influenced the observations of many scholars in Indonesia within their

respective spheres. The debate was however conducted without any

theoretically informed concept or academic guidance due to a shortage of

legal expertise and a lack of international legal references. The domestic

order was influenced by the absence of a theoretical backup. Thus the

legal construction existed without any necessary concept relevant to the

determination of the domestic status of treaties, such as the mode for


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granting domestic validity, the hierarchical rank of treaties in domestic

law; etc.

The strict separation of the academic disciplines between constitutional

law and international law in Indonesia also contributed to the deficiency

of the domestic order. The two academic disciplines never collaborated

and did not keep each other well-informed. The constitutional order is

understood partially, be it from the viewpoint of constitutional law

or/and international law that was never approached through a

collaborative perspective. Constitutionalists and international law experts

in Indonesia interpreted the order in an uncoordinated manner and

imposed their own terms in interpreting the constitutional provisions for

their own respective academic fields. Both groups of experts understood

treaties in their isolated schools of thought and independent perspectives.

As a result, the constitutional approach became incoherent because it

ignored relevant international aspects of domestic law. The

understanding of treaties by international law experts lacked domestic

legal aspects. Such rudimentary and incomprehensive outlooks

apparently caused and exacerbated the said constitutional ambiguities.

Although the sentiment of nationalism, the culture of resistance or

indifference towards the so-called ‘colonial’ international law in Indonesia

since the 1960s has been fading away, there was still no great interest

among Indonesian scholars to place treaties properly in domestic law


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until recently. Policy option is still absent in the constitutional agenda. No

intensive scholarly debate has to date significantly taken place on the

matter. Various factors account for this. From the experiences of the states

under comparative examination, this kind of attitude appears to be

typical in developing countries that have no close connection to the

Western legal tradition, as evidently shown by China. The following

historical facts have contributed to the typical unenthusiastic attitude:

Indonesia developed its own legal system by disconnecting it from the

legal tradition of its former colonial states, its geo-political isolation from

intensive international interactions, and the hostile attitude of Indonesia

towards international law in the earliest phase of independence. The

authoritarian government regime in the aftermath delayed the

development of the constitutional order on treaties. The need for a clear

regime of the domestic aspect of treaties arose only after Indonesia

entered into a democratic system in 1999, 54 years after gaining

independence.

As Indonesia continues its transition toward a fully democratic system,

the question concerning the legal status of treaties to which Indonesia is

bound shall be adequately addressed and their validity under domestic

law shall be constitutionally determined. Their domestic treatment can no

longer rely on discretionary power. To serve this purpose, Indonesia

needs a clear basis for their domestic application as well as their

constitutional legitimacy. Such a clear basis could be achieved by

optimizing the existing legal regime.


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There are at least three constitutional ambiguities that need to be

resolved with a view to optimize the existing legal regime concerning the

status of treaties under Indonesian law:

a. The utmost ambiguity is rooted in the existing constitutional

provisions i.e. Article 11 of the Constitution of 1945: The President,

with the approval of the DPR1, declares war, makes peace, and treaties with

other states, which is considered too simplistic and largely

influenced by the provision from the Meiji Constitution. While in

Meiji Constitution prescribed that “the Japanese Emperor was

empowered to make treaties”), the Indonesian version was only slightly

modified through the insertion of the words ‘with the approval of the

House of Representatives’. Such a formulation has raised many legal

difficulties in practice as it may be interpreted that Parliament could

be involved in all stages of the treaty-making process and that all

treaties are subject to parliamentary approval.

b. The second problem concerns the role of Parliament in treaty-

making, in view of existing constitutional practices which arises

from the first ambiguity. The practice distinguishes its functions in a

strict manner i.e. whether it is within the ambit of legislative

1 The Indonesian term DPR (Dewan Perwakilan Rakyat) corresponds to the Indonesian House of Representatives (hereinafter ‘House of Representatives’). The House of Representatives is considered as the Indonesian Parliament. In this writing, the term ‘parliament’ or ‘parliamentary’ will refer to the House of Representatives.


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function or otherwise its oversight functions. This has created

confusion and brought up a number of versions in the

understanding of the outcome of parliamentary participation in

treaty-making. According to the Law No. 24 of 2000 on Treaties, the

parliamentary approval takes a form of ‘law/Act of Parliament

approving treaties’. The choice unintentionally tends to create the

said prescription that the determination of the domestic status of

treaties would correspond to the legal effect of parliamentary

participation. This is in particular when it comes to how one

signifies the law approving treaties as the outcome of such

participation. On the one hand, the view that parliamentary

participation in treaty-making is within the ambit of legislative

function has tended to induce the interpretation of the law

approving a treaty as a legislative product. On the other, there also

appears a view that such participation is within the ambit of the

Parliament’s oversight function, which tends to create a strong

assertion that the law approving a treaty is merely a formal

expression of parliamentary approval.

c. The third relates to the consequence that indirectly took place due to

the second ambiguity, which relates to the mode of granting the

treaty domestic validity. The choice has created a double

interpretation with regard to the law approving a treaty. On the one

hand, the view that the law approving treaties is a legislative

product has induced the idea that it constitutes a transformation


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into domestic law. The other view states that the law is merely a

formal expression of parliamentary approval and has led to an

approach whereby the treaty, upon its entry into force, is considered

as adopted instead of transformed into domestic law. The entry into

force of the treaty in international law is considered identical with

its entry into domestic law.

2. POLICY OPTIONS

Since neither monism nor dualism is satisfactory, and no single

constitutional order subscribes to strict monism or dualism as well as to a

stringent mode of adoption or transformation, the idea of establishing a

constitutional order on the basis of pure monism and strict dualism is not

realistic and therefore should not per se serve as policy option. However,

the knowledge of the conceptual divide between the two theories is

considered as owing great importance towards a proper understanding

concerning the different attitudes of states in giving domestic effect to

treaties, and provides a clear perspective necessary for a starting point in

the formation of policy in the constitutions.

Various approaches in the actual practice of states illustrate that, under

both monism and dualism, the distinction between the validity of treaties


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under international law and under domestic law becomes inevitable. It is

increasingly held in the actual practice that international law and

domestic law have their own standpoint in dealing with the relationship

between treaties and domestic law by which different outcomes may

arise. At this stage international law remains silent on how domestic law

should meet treaty obligations. This is because the nature of such

obligations is normally that of obligations of result, with the exception of

human rights treaties, which have been arguably seen as imposing

obligations of conduct. It is therefore not feasible to maintain a policy

which holds that the domestic validity of a treaty is dictated by

international law, as monism suggests, or to view that a treaty under

international law is completely separated from that of a treaty under

(which is transformed into) domestic law, as dualism suggests. Actual

practice of states demonstrates that both are distinguishable but

inextricable. Policy consideration shall therefore include these converging

and diverging elements of monism and dualism.

The experiences of the states under review reveal that a constitutional

regime regarding the domestic status of treaties is not supposed to change

abruptly from one doctrinal approach to another. Building up a legal

regime on the basis of the existing constitutional order is more

appropriate for Indonesia. It is therefore suggested that Indonesia

optimizes its legal regime by reconstructing the existing legal framework

rather than creating a completely new framework. The reconstruction

should clarify the vague legal constructions and fill the gap that exists in


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the current order, resulting from the lack of doctrine. For this purpose

Indonesia needs to have clearer constitutional provisions and at the same

time it has to fix the existing constitutional ambiguities arising from the

distorted practice. The legal concept available at the theoretical level may

provide helpful directions.

3. PARLIAMENTARY PARTICIPATION

Indonesia is already equipped with democratic constitutional

infrastructures that may serve to build up a clearer legal regime with

regard to the question of the status of treaties in domestic law in which

parliamentary participation may be well facilitated. There exist sufficient

state organs that are basically required for a modern state, inter alia,

President, Parliament, and also the various types of judicial institutions.

The treaty-making power can be properly allocated among the state

organs.

The existing constitutional arrangement has, however, invited criticism

for its ambiguity. The simple and ambiguous provision under the

Constitution as such could be widely interpreted in a manner that

Parliament is involved in all stages of the treaty-making process and gives

consent to all treaties. The clarification made by Law No. 24 of 2000 on


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Treaties which technically modified the original meaning of the provision

of the Constitution, has appeared to constitute unintentionally a quasi-

constitutional amendment and given rise to the question of

constitutionality. For a coherent system, this constitutional defect must be

fixed so that all parliamentary powers should only be given effect by the

Constitution.

The subsequent practices of treaty-making of the states under review,

in light of the proliferation of subject matters that require parliamentary

approval, have suggested that parliamentary participation should not

necessarily be determined on the basis of a distinction between its

legislative function and oversight function. The existing constitutional

setting, which tends to regard the law approving a treaty as either merely

a legislative product (within the ambit of legislative function) or

otherwise merely a formal expression of parliamentary approval, is not

helpful in describing the proper role of Parliament. The current

democratic system has prompted an extensive participation of Parliament

in all matters that are related to political and economic strategic interests

as well as matters that may affect the rights and obligations of

individuals. In this regard, the outcome of parliamentary approval, in the

form of statutory law, shall be attributed to the general function of

Parliament without necessarily referring to the distinction between those

functions. Parliamentary participation may embrace all matters within the

ambit of legislative function, oversight function as well as budgetary


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function. Therefore, all functions are equally necessary and should be

attached to parliamentary participation in treaty-making.

4. CRITERIA OF TREATIES THAT REQUIRE PARLIAMENTARY

PARTICIPATION

The criteria as set out in Law No. 24 of 2000, which are on the basis of a

general description of subject matters, are no longer adequate for two

main reasons. First, the criteria should be stipulated in the Constitution

instead of the lower legislation as it stands now, since this very matter

relates to the allocation of constitutional powers which belong to the

Constitution. Second, these criteria greatly emphasize on politically-heavy

matters concerning the very existence of the state and exclude, in most

parts, matters that affect the rights and obligations of individuals which

fall under the legislative domain. As apparent from the comparative

outlook, legislative power is nowadays vested in Parliament. On the other

hand, there is a growing number of treaties intended to produce

legislative effects. It is therefore compelling to include matters that are

subject to legislation in the criteria. The inclusion of matters of legislation

into the criteria will prevent the drafting out of legislation through

backroom deals without parliamentary control. Other important matters


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that carry political and economic strategic interests of the state may be

added to the criteria.

The criteria on the basis of constitutional separation of powers between

Parliament and President are apparently more feasible than making a

distinction between a political and an executive/technical nature of a

treaty. The complexity and wide range of subject matters covered by

treaties under globalization have created difficulties in drawing such

distinctions in the practice. It is not always easy to assess treaties as

technically and politically important. Therefore, other treaties which do

not fall into the category of those that require parliamentary approval

shall relate to matters that are, according to the Constitution, exclusively

under the purview of government powers.

The existing legal framework raised a problem because the subject

matters that are qualified to be embodied in a statutory law should be

according to a set of criteria, determined by Treaties Law No. 24 of 2000

and Law No. 12 of 2011 on Legislation. The former deals with criteria of

treaties that are subject to parliamentary approval in the form of statutory

law, and the latter determines what subject matters should be embodied

in statutory law. The criteria set out by the two Laws overlap and are

uncoordinated, which seemingly reflects the differences in legal thought

between experts of constitutional law and international law. They bring

about great disparities in terms of their subject matters and thus the two

laws need to be synchronized.


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The criteria for having a treaty approved in the form of a statutory law

need to be revised. As suggested above, it is preferable that the criteria

shall be construed on the basis of, and therefore covering, all

parliamentary functions. The first criterion concerns treaties that contain

subjects of legislative matters. Treaties regulate matters which, according

to prevailing regulations, shall be the content of a statutory law. This

must then be submitted to Parliament for approval and acquire the order

of execution in the form of statutory law. The second criterion concerns

matters that effect strategic interests of Indonesia, over which Parliament

performs the function of oversight or monitoring control. These may be

matters concerning political and economic strategic interests, the

application of which will affect the very existence of Indonesia as an

independent state. These treaties may not necessarily affect the rights and

obligations of individuals and may be outside of legislative matters. The

most frequently quoted treaties under this criterion are, inter alia,

boundary treaties; defense and security treaties; and friendship treaties.

For these treaties, the statutory law may only grant authorization to the

President to ratify them. The third criterion concerns treaties relating to

state budget. This kind of treaty generates financial burdens for which a

specific financial plan shall be allocated in the state budget. Loan

agreements or memberships to international organizations that involve

financial contribution belong to this kind of treaty as well.


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As envisaged from the comparative analysis, the government decision

determining that a treaty according to its subject matters requires no

parliamentary approval may be subject to constitutional dispute. It may

lead to the abuse of power and result in arbitrary decisions if the

discretion is entirely left to the government unchecked. The model of the

Netherlands, where the Parliament is empowered to decide otherwise,

would apparently prevent such abuse. Upon the submission of the list of

treaties under negotiation to Parliament, the government may indicate

that the treaties in question do not require parliamentary approval but, on

the contrary, Parliament may decide, on the basis of its own interpretation

according to the criteria that the treaties shall be subject to its approval.

5. MODES BY WHICH TREATIES ARE INCORPORATED INTO

DOMESTIC LAW

The comparative analysis offers various options concerning the modes

for granting domestic validity of a treaty where all of the options have

already been interchangeably adopted in the practice and held by scholars

in Indonesia. As a former colony of a monist state, Indonesia is not

unfamiliar with the monist-adoption mode because it had practiced this

approach in its early years of independence and therefore, in terms of

legal tradition, its legal system was rooted in a monist basis. The dualist-


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transformation mode has also found its expression in the legal practices in

Indonesia. Since 1974, there has been a growing tendency which

considered the law approving a treaty as constituting transformation by

which the treaty becomes valid in domestic law. Now, there exists

another variant of the transformation mode where the law approving a

treaty is still regarded as a formal expression of parliamentary approval

but separate transformation legislation is still required for granting

domestic validity to the treaty.

Indonesia is also familiar with providing reference provisions in

domestic law by which a treaty may acquire domestic status upon its

entry into force. Despite the fact that the mode may effectively give effect

to a treaty in domestic law, the scope of this mode is still limited to

specific treaties and is not expected to provide a general rule which

applies for all treaties. This mode may, however, complement a general

mode, particularly in determining the special status of a given treaty with

regard to its hierarchical rank.

As a former colony of a monist state, the monist tradition continues to

occupy the mindset of policymakers at the Ministry of Foreign Affairs.

The Indonesian position towards the UN Human Rights Body can be

described as one that is aimed at carrying out its international obligations

faithfully at the domestic level, without giving due regard to possible

dualist barriers. Historical facts point out that dualism does not belong to


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the Indonesian tradition - Indonesia was never influenced by the common

law dualist system and it was never persuaded by the dualist thinking of

Triepel or Anzilotti. Tendencies to portray a dualist posture in its

subsequent legal practices should not to be misunderstood as a proper

dualist attitude taken up by Indonesia. It is an expression of public

sentiment in Indonesia that international law is nothing but international

morality, or that this branch of law is not familiar to Indonesia. In this

regard, a dualist perspective is not only seen as unfamiliar to Indonesia

but also as not having a basis in its legal system.

Globalization meanwhile has given rise to the need for protecting the

legal interests of domestic law in light of the pressures arising from

democratic legitimacy. The idea of democratic legitimacy finds its

expression in the current political setting where the principle of rule of

law (Rechtsstaat), democracy, as well as checks and balances are high on

the political transformation agenda. The political attitudes arising from

the current democratic transition has induced many policymakers to

pursue a dualist preference, as has been indicated by a number of cases

brought to courts, in which a greater call for shielding domestic law from

international intrusion has been expressed. The two aspects shall

therefore play an important role in the policy options by which a radical

monist as well as a strict dualist mode becomes untenable. The best mode

Indonesia could adopt may be reached by reconciling the interest of

democratic legitimacy, on the one hand, and removing unnecessary

legislative burden, on the other.


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The monist-adoption mode had been practiced by Indonesia in the

earliest period of independence but was then gradually abandoned in the

wake of nationalism and constitutionalist pressure that arose in the

subsequent period. The monist character of the first mode might not

impress constitutionalists in Indonesia at the present stage, at a time when

democratic values play an increasingly important role on the political

agenda. Constitutionalists developed a constitutional law during the pre-

reform regime in favour of nationalism by which they have been more

accustomed to domestic legislations than to treaty rules . The presence of

treaty rules in domestic law without the cover of domestic legislation as

envisaged by this mode will invite strong resistance from those legal

enforcers who are mostly unfamiliar with treaties that have not been

incorporated into legislation.

The dualist-transformation may look compatible to the existing legal

practice but it is not free from distorted constitutional features. The first

concerns the allocation of powers among constitutional organs that are

involved in the treaty- making. From the inception of the state, treaty-

making power in Indonesia was not under the exclusive competence of

the executive. Indonesia has therefore not subscribed to the constitutional

distinction between treaty-making by executive and treaty

implementation by legislature as is widely known in dualist states. The

application of dualist transformation in Indonesia will create a procedure

where the same organs will conclude a treaty and transform it into


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domestic legislation in a separate arrangement. This procedure will be

excessive because there will be two different statutory laws for the same

treaty i.e. the law approving the treaty for ratification and the law

transforming the treaty into domestic law. In this regard, Indonesia

should not subscribe to a mode that requires it to enact two different and

separate laws devoted respectively to the conclusion and the granting of

municipal validity of a treaty. From a procedural perspective, the mode

will overburden the legislative bodies because with the same procedure

they are required to enact two different laws for a relatively similar

purpose. The two may actually be given effect by virtue of the same and a

single law. Furthermore, two different kinds of parliamentary treatment

to a treaty will create a dilemmatic question of great constitutional

importance i.e. whether Parliament, having granted the approval to the

ratification of a treaty, may reject its transformation into domestic law

through the same course of action as may occur in the South African

system.

The second problem concerns the place of transformed treaties in the

legislative structure arising from the system of Stufenbau. Indonesia

subscribes to a hierarchical legislative system based on Kelsen’s Stufenbau

that, according to the current law, is divided into eight different levels.

The complex situation of this legislative hierarchical system, if applied

consistently, will create legal difficulties in placing the transformed treaty

rightly in light of so many levels of legislation. It will bring about too


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many different hierarchical ranks of treaties and give rise to a complex

relationship between them in domestic law.

From the substantive perspective, the dualist-transformation mode will

not be easily adaptable with regard to certain treaties that are concerned

with human values, such as human rights treaties, and financial interests,

such as tax treaties. These treaties possess characters that mainly impose

restrictions on the free will of the legislatures. The experiences of strict

dualist legal systems all over the world have revealed that the dualist

principles are increasingly eroded by the intrusive character of human

rights treaties in such a way that dualist states are gradually forced to

adopt remedial monist-like measures, such as consistent interpretation

(Charming Betsy doctrine), the Australian legitimate expectation doctrine

(so-called Teoh doctrine), and the British implied incorporation.

The inconsistent views expressed by the Government before the UN

Human Rights Bodies have raised significant doubt whether Indonesia is

truly applying a dualist approach in respect to human rights treaties.

Indonesia has indeed persistently argued that human rights conventions

are not self-executing and this view appears to deny their self-executing

nature by unconsciously invoking dualist arguments rather than the

merits of the provisions. However, Article 7 (2) of Law No. 39 of 1999 on

Human Rights provides a general rule which gives effect to human rights

treaties whereby the treaties become part of Indonesian law upon their


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entry into force. The argument that the Convention is not self-executing,

on the one hand, and the existence of reference domestic provisions

declaring that the Convention becomes part of domestic law, on the other,

will weaken the assertion that Indonesia applies a dualist approach to

human rights treaties. In this respect, human rights treaties may form part

of Indonesian law but in the same vein this fact should not necessarily

imply that treaties have a self-executing character. This feature is closer to

the monist model of the Netherlands. However, on the basis of the same

Article, the Government in 2013 expressed a contrasting view in favour of

direct application. The inconsistent views overturned the consolidation of

either approach, and brought about the process of going nowhere.

Having visited the existing legal frameworks in Indonesia with respect

to the relations between treaties and domestic law, it is argued that

Indonesia should embrace both elements and seek a point of balance

between the two dominating approaches. The most suitable mode for

Indonesia is the mode that attempts to reconcile the two extreme

approaches and at the same time keeps the balance between an

international law-friendly attitude, on the one hand, and democratic

legitimacy on the other. From the available options offered by the

constitutional orders examined, the doctrine of the order of execution

(Vollzugslehre), one of the doctrines prevailing in Germany, would be best

suited for the Indonesian legal system. Some valid reasons may, inter alia,

justify this policy option:


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a. The current practice of Indonesia suggests a mixed approach that

amalgamates two models: the German dualist model and the monist

model of the Netherlands. This is exemplified through the double

meaning given to the law approving a treaty in Indonesian practice.

The law approving a treaty was rooted in the model of the

Netherlands, which was originally intended to authorize the President

to ratify the respective treaty. In the subsequent practice, however, it

has been gradually understood by most constitutionalists as

‘transforming’ the treaty into domestic law. The amalgamation of the

two doctrines altogether will present ambiguities and raise

uncertainties pertaining to the legal status of the given treaty in

domestic law. The two prevailing models should therefore be

reconstructed in a manner that the two converge into a single coherent

approach, embracing both elements. Therefore, the precise legal

character of the law approving a treaty, which is still unclear and

ambiguous, should be clarified. In this regard, the law approving a

treaty should be assigned the function of expressing a formal approval

of Parliament (as originally envisaged by the framers of the

Constitution) and at the same time it should constitute an order of

execution of the treaty in domestic law (as demanded by the

subsequent practice).


27

b. The doctrine of the order of execution has encompassed all

constitutional concerns that have occupied most Indonesian

constitutionalists so far. First, the sovereignty of the state in granting a

treaty access to enter in domestic law is well preserved, because it

needs domestic authorization in the form of a national legislation. The

domestic law authority is well respected in the sense that it is the

domestic law that permits the entry of the treaty into domestic law.

Second, the role of Parliament as the popular representation in treaty-

making is secured, in which therefore, the democratic legitimacy of

the treaty could be upheld.

c. The doctrine could also ease the concern of international law experts

because it could bridge the gap between treaties and domestic law as

expected by them. International law experts would prefer this as

having a closely connected relation to a separated one thus the

domestic and external procedures, albeit distinguished, are

interrelated and form part of an integrated process.

d. The doctrine does not envisage transformation and therefore does not

need to equate treaties with the complex structure of Indonesian

legislation. The nature of the legislation as required under this

doctrine is only an order of execution, instead of a transforming

legislation, thus not all levels of legislation are necessarily assigned to

serve as orders of execution.


28

For adopting the doctrine, there are only two fundamental features

that need to be clarified under the present Indonesian legal system. The

first feature is that of the date of the entry into force of the law approving

a treaty, which is presently distinguished from the date of the entry into

force of the treaty itself, which shall be made concurrent. Following the

German model, the date of the entry into force of the law should be

dependent upon the entry into force of the treaty in Indonesia. The second

feature concerns the character of the provisions of the treaty to be applied

in domestic law. The provisions shall be linked with the international

character of the treaty. The provisions of a treaty applied under domestic

law shall retain their character as treaty provisions and consequently the

interpretation rules shall be governed by international law.

On the basis of this mode, the domestic courts will treat treaty

provisions as having the force of law and may directly apply them in a

given case before it without the aid of ordinary domestic legislation. The

direct application of such treaty provisions could be realized insofar as

the provisions are self-executing or capable to be judicially enforced. The

question of non-self-executing provisions is not unfamiliar to the

Indonesian legislative system. The Constitution and the umbrella laws

normally provide general provisions prescribing that their application

shall be stipulated in or, implemented by, the lower legislations. Pending

the enactment of such implementing legislations, these constitutional and

statutory law provisions cannot be enforced by the courts.


29

6. THE PLACE OF TREATIES IN THE LEGISLATIVE

HIERARCHICAL STRUCTURE

In view of adopting a coherent approach consistent with the idea of

the order of execution mode, the relationship between the statutory laws

and the treaties concerned shall be reconciled by balancing the two

different views i.e. that treaties are identical with the laws approving

them, and that the two are distinguishable legal instruments. Therefore in

order to resolve the perplexity arising from the constitutional practices,

the relationship between the two shall be construed according to the

following premises:

a. Treaties remain distinct from the laws that give order to their

execution; however, the manner in which they are manifested in

domestic law should be concurrent in terms of the date they take

effect.

b. Under this term, domestic treaty-making and lawmaking are

exercised through the same constitutional procedures except in the

case of the right to submit the bill, which should remain vested in the

president.

c. The statutory laws ordering executions shall serve twofold functions

i.e. first, authorizing the president to ratify/accede to a treaty and,


30

second, granting domestic effect to the treaty upon its entry into force

to the state.

d. The Constitutional Court may judicially review the laws ordering the

execution of treaties. However, a specific procedure should be set out

in order to affirm that the law ordering the execution has a unique

character distinct from ordinary laws.

The precise and appropriate place a treaty should occupy in the

complex structure of the Indonesian legislative hierarchy would become a

complicated question underlying the policy option and bring about

dilemmatic problems. The use of the form of law for incorporating a

treaty and its integration into the legislative structure might likely imply

that the process constitutes a transformation mode. Furthermore, the

legislative structure under the current system consists of eight levels of

legislations, and it is untenable to have all legislations available to

perform as an order of execution of treaties into Indonesian law. A

general rule should therefore be devised in order to determine what level

of legislation is fitting enough to be used as an order of execution, as well

as what subject matters should belong to each legislation.

The question of parallel treaties, commonly known in the German

system, may arise: whether or not an order of execution in the form of a

statutory order is still required for certain treaties if their provisions have


31

already been contained in the existing statutory law. The konkrete Theorie

is preferable, thus these treaties require parliamentary approval and a

concrete order of execution. The reason for this is simply that the exact

parallel legislation hardly exists, even if a piece of legislation provides

mutatis mutandis provisions of a treaty, the language used in the

legislation differs from the original text of the treaties and may create

different interpretations. Parallel treaties thus require their own

legitimacy from Parliament.

Other treaties that, according to the subject matters, do not require

parliamentary approval should take the form of regulations within the

ambit of executive competences i.e. presidential regulations or other

administrative regulations depending on the given subject matters and

the corresponding competent authorities. Under the prevailing law, there

are three levels of executive regulations that belong exclusively within the

competence of the President as the Head of Government i.e. government

regulations, presidential regulations and ministerial regulations, or

regulations enacted by other government organs at the ministerial level.

The form of a government regulation could not be used as an order of

execution of a treaty. This kind of law according to Law No. 12 of 2011

concerning Legislations serves only for the purpose of implementing the

provisions of a statutory law - a general nature of the provisions of the

given law needs to be elaborated or concretized in a number of detailed

provisions in the government regulations. Therefore, no government


32

regulation will be enacted in the absence of a clear stipulation by an

existing law. A treaty ordered by a statutory law generally does not

require that the provisions of the treaty shall be implemented by a

government regulation, because the treaty generally contains a set of

autonomous provisions for which no further domestic legislation is

necessary, apart from the law ordering the execution of the treaty. The

government regulations may however be used as implementing

legislation to the law ordering the execution of a treaty, but not within the

context of granting domestic validity of such a treaty. It will be only for

rendering them as self-executing. For example, if a treaty has been

approved through a law and requires that state parties set up a national

body for the implementation of the treaty, the government regulation

may be used to set up this national body.

The only available regulations that may serve as granting domestic

validity of a treaty below statutory law level are presidential regulations,

and ministerial or equivalent regulations. It follows that a treaty whose

subject matters are only within an exclusive authority of a ministry shall

be brought to effect by a ministerial regulation, while a treaty whose

subject matters involve the participation of various ministries shall be

given effect through a presidential regulation. The given treaty will enjoy

rank corresponding to the respective legislation according to the

legislative structure.


33

The use of a legislative format as orders of execution of treaties shall be

construed in a manner that may fit the legal tradition of Indonesia

concerning legislations. Having inherited the legal tradition of the

Netherlands, laws and regulations in Indonesia may commonly be

identified by two characteristics i.e. the laws and regulations having

regulatory (regeling) character and those having ruling (beschikking)

character. The former contains general provisions in an abstract manner

and are known as proper laws/regulations, while the latter contains a

specific prescription to a concrete circumstance. In respect of

laws/regulations approving treaties, they serve only as domestic orders

to execute the treaty in domestic law by which the provisions remain

embodied in the treaties instead of in the laws/regulations. This order

character resembles the kind of laws/regulations that possess a ruling

(beschikking) character under which they only contain orders and do not

transform or rewrite the provisions of the treaty into the legislation.

Therefore, the laws/regulations shall be identified as having ruling

(beschikking) character instead of regulatory (regeling) character. This legal

construction will ensure that the character of the provisions remain in the

form of treaty provisions, as envisaged by the monist-adoption mode.

As the provinces and municipalities/cities are empowered to enact

their respective regulations, these regulations might be used as orders of

execution of treaties insofar as the subject matters fall into their exclusive

spheres. Nevertheless, although the subject matters are within their

exclusive powers, the central government’s regulations may


34

appropriately serve as the execution orders if the treaties are intended to

be applicable to the whole territory instead of specific provinces and

municipalities/cities. This is possible because these local regulations are

not exclusive and they are still subject to central government regulations.

In order to address the concern of the provinces and municipalities/cities,

there must be a mechanism allowing them to participate in the treaty-

making negotiations on matters that are exclusively under their

competences.

As has been suggested above, the laws ordering the execution of

treaties are legislative products with a distinct feature and therefore are

reasonably subjected to constitutional scrutinizing. Indonesia has a

Constitutional Court which partially resembles that of the German model.

Thus the question of the constitutionality of a treaty by virtue of the law

ordering its execution may arise, as is frequently experienced by the

German Constitutional Court. The case of the judicial review of the

ASEAN Charter which was brought before the Constitutional Court in

recent times gave rise to the need to resolve this issue. Even if Indonesia

subscribes to an adoption approach which is closer to a monist

perspective, there is no democratic reason under the present democratic

legal system why the constitutionality of the law ordering the execution

of a treaty cannot be tested. On the other hand, the decision by the

Constitutional Court that might declare a treaty unconstitutional and

therefore null and void will create unnecessary effects by which Indonesia


35

violates its international obligations. The constitutionality test however

should have been taken with a distinct procedure in a way that promotes

compliance to international law. The preferred solution for Indonesia is to

provide balance between the two premises that mutually negate each

other by allowing a treaty to be constitutionally tested without creating

unnecessary international obligations. This outcome could be attained by

adopting the German practice, and developing greater legal clarification

on constitutional procedures. Within this context, Indonesia should

prescribe a constitutional procedure, posing some restrictions by which a

treaty upon the enactment of the law ordering its execution may be

submitted for judicial review to the Constitutional Court within a specific

time limit. Within that limit, the President should not ratify the treaty as

yet, pending a Constitutional Court ruling on the case. Following the

lapse of the time limit, the President may proceed to the ratification and

by then no submission of judicial review would be constitutionally

acceptable.

****


36

TREATIES UNDER INDONESIAN LAW:

A COMPARATIVE STUDY


37

BOOK REVIEW

Judul : Treaties Under Indonesian Law: A Comparative

Study

Penulis buku : Dr. iur. Damos Dumoli Agusman

Penerbit : PT. Remaja Rosda Karya

Bahasa : Inggris

Jumlah halaman : 554 Halaman

Tahun penerbitan : Oktober 2014

Pembuat resensi : Prof. Dr. Stefan Kadelbach, LL.M.

As it was the case in many other countries in the Southern

Hemisphere, Indonesia’s relation to international law has gone through

different stages after reaching independence. After a critical period when

all international law was regarded as the product of the colonial powers,

i.e. the North and West, developing countries practices gradually led to a

consolidation that marked the beginning of the next stage. In the

subsequent stage, reforms of the government system resulted in a new

orientation. While in systems of monocracy the executive was the main

actor for the conclusion of treaties, now the coordination with the

legislative power which represents the people became necessary. Like in

many other states, this change takes place without any important changes

of the text of the constitution..


38

The book aims at extracting criteria according to which the future

development might take place from comparative legal studies. For that

purpose the author examines Indonesia and four other legal orders

namely the People’s Republic of China, as an aspiring country that plays

an important role in international economic relations and thus faces

similar challenges; the Republic of South Africa, as a state that is similar

to Indonesia in facing the task of placing its international treaty practice

on a new basis after dealing with profound internal turmoil; the

Netherlands, as the legal order from which Indonesian law has developed

with respect to some essential elements; and, finally, as a contrast, the

Federal Republic of Germany which is similar to the Netherlands for

having abundant practices and scientific knowledge, but follows a

different model.

II

The Book is divided into six chapters: (1) An introduction chapter,

describing the Indonesian parameter, the problem and outlining the

methods used; (2) a theoretical chapter on general theories of the domestic

validity of international law; (3) an overview of the Außenstaatsrecht (law

pertaining to the international relations of a state) of the five legal orders

under review; (4) a comparative description of these legal orders


39

according to six different parameters, (5) an appraisal of the material

presented and (6) conclusions for future Indonesian practices.

(1) The introduction gives an account of the different stages of Indonesian

constitutional development. The first stage took place from 1945/1949

until 1966, marked by a hostile attitude towards international law. They

include the nationalization of foreign assets, the unilateral claim to the

Indonesian archipelagic waters in contradiction to contemporary

international law of the sea and Indonesia’s withdrawal from the United

Nations. The second stage (1966-98) was marked by the motto of ’making’

instead of ‘breaking’ of international law (p. 12). This period is

characterized by the attempt to use and influence international law for

Indonesia’s interests, referencing the appeal to the International Court of

Justice for the settlement of a dispute with Malaysia and the so-called

Asian Values Debate. The third stage begins in 1998 end stretches until

today; itis characterized by notable changes ensuing democratization on

the internal level, and globalization on the external level to put into

motion a reform process that has reallocated the weight within the

internal part of the process of the conclusion of treaties. Another factor is

the new Charter of the ASEAN Community that creates new international

obligations with respect to the internal constitutionalization of its

members. Another condition for the Indonesian state system are

centripetal powers that show the necessity to decentralize state

administration and possibly to provide subordinate levels of authority


40

with more competences (see p. 24) due to the heterogeneity of the

population.

The author elucidates his approach in the second part of the introduction.

He departs from the dichotomy between monism and dualism in order to

extract criteria for the classification of the different settings of the

constitutional debate. Despite the known objections against these theories

and their validity, the author still aims at using them as an analytical

framework. It will be demonstrated that there are specific features in the

Indonesian legal system that might account for these differences. In the

last part the author justifies the choice of the four legal orders under

review in greater detail and very convincingly and further offers an

overview of the following chapters.

(2) In the beginning of chapter two, the dispute between monism and

dualistm and its development through the ages is discussed. Essentially,

the obvious question is whether international law and domestic law are

one single legal sphere, resulting in the fact that international law is only

left to be applied domestically, or whether they are two separated legal

orders, resulting in the necessity of an implementing act of international

law for the purposes of domestic law. This discussion has been

considered obsolete for a long time now since both positions have moved

very close to each other. However, as they played an important role for

the formation of national constitutions, knowledge of this debate is


41

necessary in order to understand the differences in various systems. It

should not be overlooked that the debate between both sides often

continues within the framework of written constitutions if they can be

interpreted according to both theoretical approaches. According to the

author, monism in particular has received new impulses by the

development of international human rights (p. 51). This view is possible;

especially since this concerns mainly legal norms that can be directly

applied in domestic law and since their content is similar to that of

constitutions. After this general introduction concerning the dispute,

dualism is introduced and is ascribed via Heinrich Triepel and Dionisio

Anzilotti to Bodin (p. 57). As a phenomenon that might be better

explained by dualism than by monism, the immunity of states is

particularly emphasized beside the sovereignty of states in the 19th

century. This argument does not convince me completely since the

reciprocal inviolability of states before national courts is based on the co-

ordination of the subjects of international law that might just as well be

explained by means of monism. What speaks against dualism is that state

sovereignty has eroded increasingly since Word War II. According to the

author, the development of international criminal law and objective order

phenomena such as peremptory law has proven it in particular. On the

other hand, dualists could argue in their favor that individuals have not

yet become subjects of international law, a fact that would speak against a

single legal order (p. 64). It is known that the reciprocal objections have

resulted in the fact that both theories no longer occur in pure, but in a


42

moderate form, attempting to incorporate counterarguments. Thus a third

way has developed in literature, especially influenced by Gerald

Fitzmaurice, that denies the importance of the entire debate and

recommends solving problems pragmatically without taking the theories

into account.

The pair of terms of monism and dualism corresponds to the terms of

adoption and transformation. From the point of view of the monism and

dualism theories, they relate to the corresponding domestic act. While

adoption merely designates the application of international law as such,

transformation is an act that transforms the character of international law

in domestic law and exchanges the addressees of the obligations (states

against individuals and domestic authorities). The author does not

overlook that laws approving treaties and orders to apply treaties can be

interpreted from both theories. However, according to the author there

are still numbers of factors where they would lead to different results.

One of those is the official language (p. 97 et seq.) because if monism is

applied strictly the official language cannot be applied if it is not an

authentic treaty language. One could add that the methods of

interpretation of international law in general must be taken into stronger

account, including, in particular, the later treaty practice of parties and of

arbitral or other tribunals. Another differentiating factor is the importance

of challenges of their validity as they arise from constitutional objections

that are evaluated differently by the theories; this, however, is disputable.


43

Further, the author dwells intensively on the question of so-called self-

executing treaties (p. 98 et seq), i.e. treaties that are directly applicable due

to their nature. It may seem obvious to interpret them in the sense of

monism, however, it is not a cogent conclusion. The question whether

such treaties have domestic effect ultimately depends on the national

legal order. It should be noted that the case law with respect to GATT

quoted by the author could be more updated (p. 114). But the author

rightly notes that this debate does not advance a dispute. What is

interesting is the notion whether the increasing importance of democracy,

particularly in countries of the Southern Hemisphere, rather suggest a

dualist stance, as it tends to favor the engagement of parliament. The

author also contemplates whether the phenomenon of

constitutionalization and pluralism has put an end to the debate. The

author sees this differently because under these circumstances the states

still can and must decide upon the status of treaties, even if, admittedly,

that the freedom to accept treaties has been restricted in particular by

constitutionalization and international human rights. This issue remains

controversial. For the court practice, both tendencies to international law

and national sovereignty are possible. Therefore, the author does not

want to choose one side or the other and the results remain relatively

open.

3. The third chapter introduces the chosen legal orders with respect to

their ‘Außenstaatsrecht’ (constitutional law pertaining to international


44

relations) in an overview. For every one of these states the author

describes the background of the existing constitutional rules, the

competences for the conclusion of a treaty, the underlying meaning of the

term of treaty and possible idiosyncrasies. The description of German

law is, generally speaking, correct. The part about Indonesia, that for

obvious reasons is the most detailed one, takes up much of what is stated

in chapter one. This holds true in particular with regard to the division of

the different phases. The first phase lasted from 1945 to 1960 when

treaties were concluded on the basis of the Constitution that resulted from

strong Dutch and Japanese influence. In the second period (1960 until

2000) the conclusion of treaties was regulated by a Letter of the President.

In the third period there is now a law governing international treaties.

The constitutional basis, however, has remained, with short interruptions

and minor changes, the same. What is interesting is that there was no

distinction made between the conclusion of a treaty and the ratification.

This corresponds to the heavy weight the executive of the

‘Außenstaatsrecht’ (law pertaining to international relations) has;

however, it does not fit with the parliament clause which was introduced

later (p. 234). What is confusing is the difference in terms of terminology

stemming from Dutch law between “treaty”, on the one hand, and

“agreement”, on the other hand. This applies both in political practices

and in theory, which are satisfactorily explained. Ultimately, it remains

unclear what is meant with the phrase a treaty should be ‘governed by

international law’. What seems particularly contestable is whether that


45

includes treaties under private law (p. 244). Apparently this problem

arises with respect to loan agreements. All of this results in the fact that

the internal competences have remained quite uncertain.

4. Chapter four compares the five legal orders with respect to two aspects

that are important for treaties namely the distribution of competences in

the treaty-making power and the status of international treaties in

domestic law. With regard to the treaty-making power the author

describes the different categories of treaties that require parliamentary

participation. What connects them is the fact that the parliament is only

competent for certain and more detailed treaty categories. Moreover, the

author points out in particular those legal norms that are familiar with the

engagement or competence of sub-ordered (autonomous) entities, such as

Germany (Art. 32 GG), China (Hong Kong, Macao) and, within strict

limits, Indonesia (Papua and Aceh p. 261).

The segment on the domestic status of international treaties takes up

again the debate between monism and dualism. Apparently mixed forms

occur everywhere. In China, for instance the traditional monist view has

been restricted by growing practices in the sense that certain treaties,

especially within the framework of human rights and commercial law,

require transformation. It seems obvious to assume that these are types of

treaties that may be in tension with the prevailing doctrine. (p. 283). South

Africa, like many other common law countries, is a dualist state.


46

However, for self-executing treaties that allow for adoption it is adequate

according to the monist mode. The situation with regard to the German

Basic Law is correctly described, including contradictions that are

reflected in the decisions of the Federal Constitutional Court. The author

has not overlooked other interesting details such as the qualification of

ordinary law that may restrict or exclude the possibility of direct

application of international treaties. The special status of the European

Convention of Human Rights (ECHR) is correctly described. Finally in the

Netherlands, it is understood as a model of monist systems where the

courts may decide if treaties are directly applicable or not (see p. 340).

Contrastingly in Indonesia, domestic status was of no importance. Thus

the questions of implementation, the rank, the parliamentary process and

the form of the act of approval have been debated. Gradually, however,

practices have developed that result in the form of the law having the

character of an act of transformation. However, some factors of the state

practice may be interpreted in the sense of monism. With regard to the

case law as well, which is surprisingly extensive and outlined in great

detail, it has not resulted in clarity. Mostly international law only plays a

role mediated through national law. A clear statement on the relation of

both, however, cannot be made (p. 395 et seq).

5. The fifth Chapter has an analytical character and is meant to bring

together the findings of Chapter 4. First, there is a general part

establishing that there are no models that strictly keep up monism or


47

dualism only. The German system is in most regards rightly described as

hybrid and ambiguous (p. 429). It seems plausible to me that both systems

play a role (p. 430), especially in South Africa and Germany. There are

other good observations made in this Chapter. It is certainly true that the

question of the domestic status of treaties has played a major role only

since World War II (p. 415), since the conclusion of treaties and the

creation of international organizations have increased in a way that is

unparalleled in history. Moreover, it is rightly observed that states which

have overcome a dictatorship tend to be more open towards international

law (p. 435) and that international law and constitutional law increasingly

penetrate each other (p.439). Additionally, the author determines three

common features in the five legal orders under review; first, that all

treaty-making power has developed in the course of time, from executive

heavy archaic privileges towards stronger parliamentary participation,

which was often resulting in a state of uncertainty with respect to the

interpretation of the participation of parliament, as it is unclear whether

this primarily serves controlling the executive or legislative purposes (p.

430). Second, in all legal orders under review, not all but only certain

treaties require the approval of parliament. Here the German model that

describes categories very abstractly differs from the other legal orders

because other legal orders designate treaties that require approval

according to the content they regulate. In every case, however, it seems to

be of importance that legislative competences should not be wrongfully

restricted by the competence of the government to conclude treaties.


48

Third, the author concludes that the involvement of subordinate entities is

rather a historic phenomenon, as for instance in Germany and China and

that it does not occur necessarily in a systematic manner in federal states,

as can be seen in the case of South Africa.

The following part that deals with the models of treaty validity takes up

again the never-ending monism-dualism debate. The points that matter in

this respect are, according to the author, the relation between the date of

the entry into force of treaties and direct applicability. With regard to the

rank within the domestic pyramid of norms, monism tends to rank them

high, as can be seen in the case of the Netherlands (p. 462). However, one

might use the example of the US as a counterargument as they are

understood as a monist system in general, but do not accord treaties a

clear, or at least not necessarily a high, rank. In its closing, the author

concludes that the problem of self-executing treaties is not necessarily

correlating to this issue; the different approaches do not indicate a clear

concept (463). In the end stands a conclusion that has not found a clear

attitude with respect to a number of issues raised for China and

Indonesia. This is true even for the status of human rights (p. 468).

6. Chapter six infers from the previous five chapters for future Indonesian

treaty practice:


49

- The text of the constitution is outdated, ambiguous and

inadequate with respect to the problems that occur. It is particularly

unclear with respect to the function of the law approving treaties,

resulting in controversy (p.475 et seq).

- Neither Dualism nor Monism alone offer satisfying solutions.

According to the author, Indonesia should follow the example of other

countries and ensure a gradual process of change on the basis of the

existing order.

- The dichotomy of both function of the act of approval between

control and legislation should be brought to an end. The criteria of both,

that is particularly the regulation concerning the approval of treaties and

the legislative process intended by constitutional law should be adapted

to each other. Moreover it must be clarified to which treaties these new

coherent procedures should apply. According to this, the competence of

the constitutional organs should be determined when it is a (state) treaty

and when it is an (administrative) agreement. Parliament should have the

right to step in into the procedure by its own initiative.

- The recommended generic approach favors a careful continuation

of the monist tradition stemming from Dutch law that has the advantage

of being international law friendly. On the other hand dualism might be

more democratic, because with the requirement of an act of

transformation, in most cases a statute, it justifies the competences of

parliament. The middle way would be Vollzugs theory (p. 485). Further,


50

the question of the entry into force of a treaty and its connection with the

law approving a treaty could be clarified on this basis.

- The rank of the treaty should follow the act introducing it in

domestic law. However, it should not, as sometimes discussed, form an

independent category. The Indonesian Constitutional Court should have

the competence to examine if laws approving treaties are in conformity

with international law.

III

The Author has submitted a well founded study using a lot of material, in

which he describes the character of the legal orders under review – at

least the German one - very adequately and nuanced, considering he is a

jurist who has not grown up in this system. Despite the fact that the

dichotomy between monism and dualism is overemphasized, in my

opinion, the author has succeeded in extracting criteria that structure the

depiction. Parts of the thesis are excessively detailed and there are some

redundancies. However, the author has reached a number of a very

interesting and remarkable theories and results. One of these is the

correlation between the affirmations of a constitutional order of a

particular system with regard to the domestic status of international

treaties with the respective arrangement of the balance of powers. The

author has demonstrated so with respect to Indonesia, South Africa and,


51

with reservations, for China as well. The historical example from which

this idea is deducted is the antagonism between crown and parliament in

Great Britain that has led to a specific form of dualism. Another

interesting factor is the tension between both parliamentary functions of

the legislation and the control that is reflected in the law of approval and

which in some constitutional orders requires a resolution. The final

conclusions drawn with respect to Indonesia seem modest. However, it

must be granted that a proposal aiming at influencing political practices

must not lose sight of what is feasible.


52

REVIEW BUKU


Study



Bahasa : Inggris



Pembuat resensi : Professor Simon Butt, B.A. LL.B., Ph.D.

Indonesia’s legal system has, since the declaration of

independence in 1945, laboured under a major shortcoming: no law has

established the precise status of international law within the domestic

legal order. Over the decades, Indonesia has signed more than 4000

international agreements, yet their precise legal effect - that is, the extent

to which they bind Indonesian officials and institutions, including judges

in courts - has been uncertain. One result appears to have been

inconsistency, with some officials and courts being willing to apply and

enforce international law ‘directly’ and others refusing to do so without a

direct act of ‘transformation’ – that is, the adoption of the subject matter of

an international agreement within an Indonesian legal instrument, or at

least a declaration of ratification within such an instrument.


53

For most commentators, my self included, the reason for this lack of

clarity has been somewhat of a mystery. How can the world’s fourth

largest nation, and an active participant in international affairs, provide

no clear guidance to its own institutions and citizens about the rights and

obligations that arise when Indonesian officials sign an international

agreement? Happily, this mystery has now been solved, or at least

explained, in an excellent new book: Treaties under Indonesian Law: a

Comparative Study by Dr Iur. Damos Dumoli Agusman, SH. MA.

According to Dr Agusman’s convincing explanation, before Suharto’s fall

in 1998, the role of international law within the domestic legal system had

not been considered a particularly important issue by previous

administrations. Under the ‘Old Order’ of Indonesia’s first president,

Soekarno, international law was treated with some disdain and largely

ignored. After all, it had been mostly created by western powers, many of

which had colonised the developing world, including Indonesia. Why,

then, should Indonesia submit to the rules of the West – this time by

choice? For some Indonesians, international law was also irrelevant to

their concerns to build a strong nation. Indonesia even withdrew from the

United Nations (UN) in 1965, arguing that it was ‘blatantly against our

colonial struggle’ and ‘against the lofty principles and purposes of the UN

Charter’. Nevertheless, international law was taught and studied in law

faculties across Indonesia. But it was treated as a separate discipline,

entirely divorced from the study of Indonesia’s domestic legal system. It


54

emerged almost as a body of theory rather than a body of law that had

practical implications for citizens and government alike.

Indonesia’s second President, Suharto, sought deeper international

engagement than had Soekarno and, therefore, participated in

international lawmaking fora. (Yet, as Dr Agusman notes, Indonesia’s

participation was sometimes directed towards bucking principles of

international law, including in the law of the sea.) However, like many

countries, Indonesia adopted areas of international law that suited its

interests and avoided those which did not. International agreements that

were in Indonesia’s interests – such as those that sought to promote trade

– were often readily endorsed by Indonesian officials without much

controversy. By contrast, Indonesia preferred not to sign up to many

human rights agreements.

In the post-Suharto era, the Indonesian government has, according to

Agusman, found itself under greater pressure, both domestic and

international, to adopt legal standards based on international norms.

Accordingly, Indonesia has signed up to a wide variety of international

agreements, including the human rights treaties that previous

administrations had avoided. Many domestic Indonesian laws were then

amended or replaced to incorporate many norms of international law as

their own. Perhaps the most conspicuous adoption of international norms

was the insertion, in 2000, of an extensive Bill of Rights into Indonesia’s

Constitution, which draws heavily from the major international human

rights declarations and conventions.


55

However, a fundamental question has remained: if Indonesia signs an

international treaty, does that treaty automatically come into force in

domestic law (the so-called ‘monist’ position), or does it require some

form of ‘transformation’ (the ‘dualist’ view), that is, an enactment of

domestic law to bring it into force? Applied to the Bill of Rights, for

example, if Indonesia had already ratified the International Covenant on

Civil and Political Rights and the International Covenant on Economic,

Social and Cultural Rights would it need the Bill of Rights? In other

words, would the human rights norms of the two Covenants have already

formed part of Indonesian domestic law once ratified? Or was

‘transformation’ – in this case, inclusion of the rights contained in the

Convention in the Constitution or some other legal instrument –

necessary for those norms to become part of Indonesian law?

This question is still unanswered in Indonesia, which is one of the only

countries in the world that does not specify, in its Constitution or some

other law, or through judicial practice, the precise status of international

law within its domestic legal system. The result is the emergence of

various interpretations and inconsistent practices, resulting in uncertainty

about the precise effect of treaties under Indonesian law. It is quite

surprising that during the overhaul of Indonesia’s 1945 Constitution

across four amendment rounds (1999-2002), the issue was not decided, let

alone raised as an issue for serious discussion. However, uncertainties

about the precise status of international law have certainly not stopped


56

Indonesia’s executive from entering into international agreements, and

Indonesia’s national Parliament from ratifying them.

The value of Treaties under Indonesian Law: a Comparative Study is not

merely, as the title suggests, its discussion of the status of treaties within

domestic Indonesian law. It also provides excellent coverage of highly

theoretical and difficult material: the various theories that have evolved to

explain the reception of international law within legal systems and the

domestic rules for the formulation of treaties. Dr Agusman discusses

monism and dualism, engaging with very sophisticated and scholarly

debates across legal traditions and long periods (Chapter II). One of the

book’s other strengths lies in its use of comparative analysis – in

particular, comparing the treaty-making powers and the status of treaties

in China, South Africa, Germany, the Netherlands and, of course,

Indonesia. Chapter III discusses treaty-making powers in these domestic

legal systems, in an effort to ascertain whether ‘there is a correlation

between the structure of a treaty-making power and the question of

domestic status of treaties’ (p. 44). Chapter IV covers the relationship

between treaties and domestic law, again using these countries as case

studies.

Chapter IV’s coverage of the inconsistencies in the domestic treatment of

international law that have emerged in Indonesia is excellent. It provides

information and analysis that was not previously available, significantly

advancing debate about whether Indonesia tends towards monism or

dualism. For example, the author discusses a draft of the Treaties Law,


57

which required national legislation to implement an international treaty if

that treaty would have had the effect of amending or replacing existing

legislation or creating norms that did not previously exist under domestic

law. Agusman describes the treatment of international law in statutes and

in judicial practices (including Supreme Court and Constitutional Court),

cataloguing many cases, not discussed in previous Indonesian

scholarship, in which Indonesian courts appear to have directly applied

international law without implementing legislation. As for reform, Dr

Agusman wisely argues that Indonesia should build up a legal regime to

clarify the status of international law on basis of existing constitutional

order rather than changing it abruptly. In Dr Agusman’s words, ‘The

reconstruction should clarify the vague of legal constructions and fill the

gap that exists in the current order, resulting from the lack of doctrine’.

This wonderful and timely book attempts to grapple with this

fundamental issue and many related to it. Given Indonesia’s increasing

engagement with the international community, the importance of this

work to Indonesia’s legal development cannot be overstated. Not only

does it cover an issue of critical importance, it is also a highly scholarly

work that contributes significantly to Indonesian doctrine on international

law. Although it does not – and in fact cannot – solve the problem is that

it raises, this is not through lack of analysis and scholarly rigour. In short,

this must rank as one of the best books derived from a doctoral

dissertation written by an Indonesian legal scholar. It is all the more

impressive because it is based on work produced while the author was


58

simultaneously working as the consul general of the Republic of

Indonesia in Frankfurt.


59

REVIEW BUKU Judul : Treaties Under Indonesian Law: A Comparative

Study Penulis buku : Dr. iur. Damos Dumoli Agusman Penerbit : PT. Remaja Rosda Karya Bahasa : Inggris Jumlah halaman : 554 Halaman Tahun penerbitan : Oktober 2014 Pembuat resensi : Abdulkadir Jailani

Not many legal books are able to convey information beyond

what is written inside. Such books would undoubtedly be a great

scholastic work that not only descriptively presents the normative

aspect of a legal issue, but also critically examines the philosophical,

historical and political aspects of that legal issue. Through such

books, we are able to acquire deeper understanding on the legal

traditions of various international legal scholarships.

This is the impression I had after reading Treaties under

Indonesian Law: A Comparative Studies written by Dr. Iur Damos

Dumoli Agusman, S.H., M.A. The book is a published dissertation

written by Dr. Iur Damos and defended at the Goethe University of

Frankfurt, Germany in 2014. It is therefore unsurprising that the

main ideas are unequivocally expressed and profoundly analyzed.


60

Encouraged by the author’s everyday work experiences as a

diplomat, the book attempts to revive one legal issue that has long

been abandoned in the ruins of Indonesian legal scholarship. It also

represents the concern of the author that Indonesian legal discourse

has not really addressed the discourse on the juxtapose of

international and national law.

Although the title of the book only indicates treaty related

issues, one of its important aims is to provoke readers to rethink the

dynamic relationship between international and national law. Not

only do the readers gain theoretical insight on the status of treaties

in national law, they are also invited to have a closer look at the

basic concepts of international law both philosophically and

historically. The origins and significance of the sovereignty concept

in international law is also a central issue gaining special attention.

Analysis in the book begins with a discussion on the

dynamic views and attitudes of Indonesia towards international

law in the course of its history. In this part, we get a taste of Critical

Legal Studies (CLS). We will be shown that international law is not

perceived as neutral, autonomous and far from being objective. The

meaning of international law is a embodiment of social construction


61

which is inseparable from power relations. Therefore, Indonesia’s

attitude towards international law changes dynamically according

to the political situation and context from one era to another. The

lesson learnt from such dynamic and shifting attitude towards

international law is that an Außenstaatsrecht’ (constitutional law

pertaining to international relations) that can preserve co-existence

between domestic law and international legal order may be

pragmatically more desirable for Indonesia.

The book tries to encapsulate in greater detail how a political

context in Indonesia has shaped the country’s attitude towards the

treatment of international law in Indonesia. In the early years of its

independence, Indonesia tended to resist international law by

debunking the imperialist nature of international law. International

law was perceived as the law justifying subjugation of the people of

Asia and Africa. Antagonism against international law gradually

turned to apathy when Indonesian political orientation move closer

to align with the Socialist Block. During the New Order Era,

Indonesia’s attitude to international law has shifted to become more

friendly. Indonesia’s stance on international law focused on the

endeavor to strike a balance between the interest of developing

countries and the sanctity of the existing international obligations.


62

When it came to Era Reformasi, the book moves away from his initial

approach emphasizing the significance of the political context to

Indonesia’s official stance in various international legal discourses.

It only signifies that the ignorant attitude towards international law

is a result of the fact that this branch of law is neither well–

understood nor particularly interesting to a wider community of

international legal scholars in Indonesia. It also stresses that the

teaching of international law has been undertaken in isolation from

national law. The way the book points out this notion as if the

problem is an exclusive phenomenon of the Era Reformasi.

Once we dig deeper into the book, we will encounter an

overly extensive conceptual analysis on the relationship between

international and national law. Although we have taken a whiff of

the CLS perspective in the beginning of the book, the whole

construction of its argument is entirely built upon the two

conventional theories of Monism and Dualism which flourished

under legal formalism tradition. The exclusive and excessive

application of the two theories implies the persistent assumption

that Monism or Dualism is a self-contained doctrine which

provides absolute rules and legal criteria, with universal validity,

for determining the relationship between international and national


63

law. In light of this, the author insists the continuous relevance of

Monism and Dualism, despite globalization having significantly

affected the very foundation of both theories.

The book does mention that there is the so-called “third

approach” which attacks the heart of Monism and Dualism.

However, the assumption on the validity of both theories remains

intact. Although acknowledging the criticism against both theories,

the book argues that such criticism fails to provide feasible

alternative theories as their legal narratives seems to be imprecise

without the help of Monism and Dualism. Moreover, the book also

contends that the “new perspective” as offered by legal pluralism

may only be applicable to the European context. It hardly creates

practical value for non-European countries. All these standpoints

are actually prone to various critical challenges.

In spite of the insistent assertion of the relevance of Monism

and Dualism, the book does not oppose the paradigm shift from the

two theories to the “new perspective” on the divide between

international and national law. Many lines in the book allude that

Monism and Dualism have lost their relevance as theories. On the

basis of an empirical comparison review of several countries, it


64

clearly maintains that neither Monism nor Dualism can

satisfactorily explain the State practices on the status of treaties

under their domestic laws. In one way or another it agrees that both

fail to grasp the (post) modern problem at the international level

and the complicated interconnectedness between international and

domestic law. The outcome of the overview suggests both Monism

and Dualism have mutually influenced each other and resulted in

some converging elements. States practices examined in the book

show that the two theories have become undistinguishable.

Therefore, neither absolute integration of all legal orders (monism)

nor absolute separation between international and national legal

order can be sustained.

Having said that, it is safely inferred that the outcome of the

analysis in the book even confirms the arguments of “the new

perspective”. The relevance of a theory should be determined on

the basis of how it is applied in practice and whether it can cope

with all the problems that it needs to solve. It is undisputed that the

practical application of the two theories are unsatisfactory and they

do not help in solving legal issues. Therefore, maintaining the

relevance of Monism and Dualism as a doctrinal or theoretical


65

notion in explaining the relationship between international and

national law is logically unattainable.

The suspicion that the “new perspective” fails to provide

feasible legal narrative is also problematic. It is not surprising that

conventional legal theorists contest the new narrative of legal

pluralism by highlighting its inability to provide “positive legal

narrative” – a narrative that provides a practical solution to the

conceptual issues of the relationship between international and

national law”. There are at least two contending arguments against

this view. First, many academical legal works establish that legal

pluralism is the best alternative to Monism and Dualism. Legal

pluralism is not just a critical legal reasoning without any practical

presence and relevance. Second, it is also arguable whether a

“positive legal narrative” is necessary for defending legal

pluralism. Many argue otherwise. It is actually better to have a

“negative legal narrative” which accurately depicts a legal theory

and generates profound insight (such as legal pluralism) than to

have a utopian theory which sounds inspiring but fails to take a

realistic and and critical look at the theory in question. For that

reason, the expectation to have a “positive legal narrative” should

itself to be questioned.


66

It is very true that the legal narrative proposed by the “new

perspective” always requires the assitance of Monism and Dualism

in order to present a precise solution. If we wish to apply a strategy

of deconstruction for debunking Monism and Dualism, we will

necessarily reverse all the arguments from defending the two

theorists to advancing the plausibility of the “new perspective”. In

the sense of simple logical metaphor, we will only be able to explain

the grey color of every detail, if we have critical understanding on

the concept of “black” and “white”. Therefore, the fact that legal

pluralism needs the help of Monism and Dualism in explaining the

relationship between international and national law does not mean

that the relevance of the latter remains irrefutable

The argument which maintains that the “new perspective” as

offered by legal pluralism may only be applicable to European

context is also questionable. The book makes the claim without

being supported by an adequately convincing argument.

Conversely, it can be argued that the legal pluralism perspective is

very suitable for developing countries with a very dynamic attitude

towards international law (such as Indonesia). The new legal

perspective offers a dynamic interplay between international and


67

national law as it will provide broader spaces and greater

opportunities for developing countries to promote international law

development from below.

With a view to coping with the intricate controversy of

Monism and Dualism, the book tries to offer a middle approach.

This is done by modifying and adjusting the theories in such a way

that they can fit with the practical realities and vindicate the

mutually negated premises. Accordingly, the theories need to be

condensed into a more practical construction by which the basis

premises of this theories have been put aside. At the same time,

their relevant characteristic modified so that they fit the practical

purposes.

Although the the middle approach potentially offers a very

promising practical solution, it is indeed a “newly invented theory”

which is conceptually neither Monism nor Dualism. As a matter of

fact, this creative attempt substantiates that Monism and Dualism

are not self-contained and stable theories which are able to provide

absolute rules and legal criteria with universal validity. Both

theories do not release a single theological meaning, but a multi-

dimensional one in which a variety of alternative narratives may


68

flourish. The introduction of such middle approach indeed

indicates that Monism and Dualism should cease to exist as

doctrinal and theoretical notions for addressing the relationship

between international and national law. Beyond what is written,

such a creative middle approach brings to light the incredulity

towards the metanarrative of Monism and Dualism.

The last part of the book on the conclusion is quite thought

provoking. The author mainly concludes that the status of treaties

in Indonesian law is unclear and ambiguous. It has resulted in legal

uncertainty of the precise effect of treaties under Indonesian law.

According to the book, this condition is caused by a number of

factors, including:

a. The formulation of Article 11 of the 1945 Indonesian

Constitution (whose text originally derived from the Meiji

Constitution of the ancient Japanese Empire) is overly simple

and insufficient to explain the status of treaties in Indonesia;

b. The provisions of Law Number 24 of 2000 on Treaties was so

poorly drafted that it also failed to address the problem ;


69

c. Legal discourse on the status of international law among

Indonesian legal scholars is not supported by adequate

theoretical and conceptual understanding;

d. Constitutional practices related to treaties tends to be

inconsistent.

For that reason, the author recommends amendment of

Article 11 of the 1945 Constitution. Such amendment needs to

provide a clear provision on the status and position of treaties in

the Indonesian legal system.

Although the root of the problem does evidently rest on

Article 11 of the 1945 Constitution, amending the Constitution as

recommended by the book is neither easy nor risk-free. It concludes

that one factor of the problem is the lack of theoretical

understanding and inconsistency in the constitutional practices.

This very conclusion would actually make the attempt to amend

the Constitution less plausible. Without adequate theoretical

understanding and consistent constitutional practices, the

amendment process may end up with unintended outcome.

Therefore, the recommendation of amending Article 11 of the 1945

Constitution is merely a typical legal formalism solution which


70

requires extra careful and thorough consideration of all related

aspects, especially its political and sociological aspects.

Last but not least, it is not an exaggeration that the book is a

must-read for Indonesian legal scholars, especially those from the

constitutional and international law circles. The information

conveyed is very enlightening and even beyond what the readers

hope when opening the first page of the book. By reading this book,

the readers will discern that any system of rules on the domestic

status of treaties is not more than a rhetorical style on how States

treat international law within its national order in accordance with

the political preference of that particular State.

While this book is not perfect, the sharpness in analysis and

the strength of the legal reasoning compensate what the book lacks.

A shortage and recommendation that the author may consider is to

republish in the Indonesian language.

***


71

REVIEW BUKU


Study



Bahasa : Inggris



Pembuat resensi : Dr. Haryo Budi Nugroho

Comprehensive and well structured, those are the two words to

describe the book titled Treaties Under Indonesian Law: A Comparative

Study. The Author, Dr. iur Damos Dumoli Agusman, is not a stranger in

Indonesian international law community. He was once the Director for

Treaties for Economic and Social Cultural Affairs, and currently the

Secretary for the Directorate General for Legal and Treaties Affairs of the

Ministry of Foreign Affairs of Indonesia. This book is based on his

doctoral dissertation at the Goethe University of Frankfurt, where he

obtained the predicate of magna cum laude. Diplomat with a legal

background, the author expresses not only his expertise in the subject

matter but also the reality of the real world practice.


72

From Indonesian legal literature perspective, the book managed to

explain the history of the Indonesian legal approach with regard to

treaties, as well as the practice throughout Indonesian history. It then

successfully concludes by describing the current practice in Indonesia, its

positive and negative side, and carefully framing the main question:

where is the rank of treaties in the Indonesian legislative structure.

Reading this book makes us not to only understand Indonesia treaty law,

but Indonesian legal system context is nicely elaborated to provide a

better understanding of other areas of Indonesian law. The author

explains the struggle that Indonesia is going through since its

independence to construct its own legal system. Generally, the division of

the era in this book, Independence/Old Order, New Order, and

Reformation Era, are generally accepted division of Indonesian history.

Most importantly, it successfully explains the transformation of the

Indonesian’s government structure. Those are important factors in

understanding how Indonesian treats international law, and why such

treatments are given.

Then comes the big topic: the debate between a dualist and monist

approach to international law in domestic legislation. Everyone who

studied law would consider this as a nightmare. This book does not fall in

the complication in answering this question. It explained the two


73

concepts, and carefully discusses theoretical backgrounds of the two

approaches, which serves as foundation in assessing what kind of

approach that is practiced by states. It further explains the other

theoretical concepts of adoption and transformation, as well as direct and

indirect effects of treaties. The book then briefly describes the

development of these theories as practiced by States.

The bread and butter of this book actually lays in the comparative study

with four other legal systems, which demonstrate how theories are being

applied. The States that under reviewed are China, South Africa,

Germany, and most importantly the Netherlands, the former colonial

power of Indonesia who gives big influence in Indonesian legal system.

Each of the legal systems are discussed sufficiently, in order to give ideas

where Indonesian stands in regard to its approach to treaties. Though the

selection of the States in the comparative study is generally civil law

system, the discussion of the direct-indirect effects (self executing - non

self executing) approach, in particular in the United States system, gives a

nuance of the common law system.

Unlike the general notion that most countries will inherit the legal system

from their former colonial power, Indonesia did not adopt the entirety of

the Netherlands system but rather struggle to develop its own. This book

is very honest in [revealing the answer of the main question], as there is

not a definite answer with regard to the position of treaties in Indonesian


74

legal system. However, the elaboration in this book helped to understand

the Indonesian approach with regard to treaty, and how it will be treated

in Indonesian system. It covers not only the structural discussion with

regard to treaties in Indonesian legal system, but also the behavior of the

judicial organs.

With the development of international communities, the subject of

relation between international and domestic law are no longer exclusively

the domain of international law subject. With the journey of time, treaties

are more influential to individual activities in one State. Historically, it

started with human rights related treaties; nowadays it developed to

international trade related treaties, whereas more and more individuals

are affected directly with the provisions of international law. This

development should be understood not only to international lawyers, but

all legal practitioners including those who are advising the parliament as

well as the governments. This book will provide the reader with the

necessary information in order to understand the relation between

international law and the Indonesian domestic system.

This book has added an important piece in Indonesian legal literature. On

one side it helps the outside world to understand Indonesian treaty

practice, and on the other hand it opens the eyes of the Indonesian legal


75

community on the struggle of the Indonesian legal system in its approach

with regard to treaties. Such understanding is necessary even since they

are studying law so by the time they graduated they are equipped with

thorough knowledge of the intertwine between domestic and

international law, because it have to be acknowledge that exclusive

separation between domestic and international law in real practice does

not exist. Therefore, without a doubt, I highly recommend this book for

students, international and domestic legal practitioners, as well as for

those who works for government and the parliament.


76

REVIEW BUKU


Study



Bahasa : Inggris



Pembuat resensi : Prita Amalia, S.H., M.H

Masalah implementasi perjanjian internasional di suatu negara

sampai saat ini selalu menjadi menarik untuk didiskusikan. Begitu juga

dengan pelaksanaan perjanjian internasional di Indonesia, sebagai sebuah

negara yang aktif melakukan kegiatan dengan negara lain baik dalam

bentuk bilateral, regional dan multilateral. Permasalahan yang mungkin

timbul adalah terkait apakah suatu perjanjian internasional yang sudah

diratifikasi suatu negara dapat langsung dianggap sebagai bagian hukum

nasional ataupun mengenai status perjanjian internasional di suatu

negara.

Sebut saja mengenai judicial review Undang-undang No. 38 Tahun 2008

tentang Pengesahan Piagam ASEAN oleh Mahkamah Konstitusi.


77

Undang-undang pengesahan pada dasarnya hanya berisi ketentuan yang

menegaskan meratifikasi atau mengesahkan Piagam ASEAN dan berisi

Piagam ASEAN tersebut yang menjadi lampirannya. Dengan

dilaksanakannya judicial review tersebut apakah hal ini juga sama saja

dengan Indonesia melakukan judicial review terhadap Perjanjian

Internasional dan apakah Perjanjian Internasional memiliki status yang

sama dengan Undang-undang Republik Indonesia pada umumnya.

Masalah implementasi perjanjian internasional juga terkait dengan

apakah setelah suatu negara meratifikasi perjanjian internasional harus

dibuat peraturan pelaksana (implementing legislation) untuk

melaksanakan kewajiban internasional yang melekat dalam perjanjian

internasional tersebut, atau proses ratifikasi sudah memiliki akibat

hukum bahwa kewajiban internasional harus sudah dapat dilaksanakan

tanpa atau adanya peraturan pelaksana (implementing legislation). Suatu

kasus yang sudah cukup lama terkait dengan pelaksanaan dari

Convention on Recognition and Enforcement of Foreign Arbitral Award

(New York Convention 1958) yang oleh salah satu hakim di Indonesia

pada saat itu, berpendapat bahwa walaupun konvensi ini sudah

diratifikasi Indonesia melalui Keputusan Presiden No. 34 Tahun 1981,

bukan berarti langsung dapat dilaksanakan sehingga diperlukan

peraturan pelaksana lainnya. Pada akhirnya dibuatlah Peraturan

Mahkamah Agung No.1 Tahun 1990 tentang Tata Cara Pengakuan dan


78

Pelaksanaan Putusan Arbitrase Asing.

Permasalahan selanjutnya yang sangat ramai didiskusikan adalah

mengenai ketentuan Pasal 85 Undang-undang No. 7 Tahun 2014 tentang

Perdagangan. Dalam pasal tersebut mengatur bahwa Pemerintah

Indonesia memiliki kewenangan untuk membatalkan perjanjian

internasional yang diratifikasi oleh Indonesia baik melalui Undang-

Uundang maupun Peraturan Presiden, pada saat perjanjian internasional

tersebut merugikan kepentingan nasional. Diskusi mengenai

permasalahan ini juga merupakan hal yang menarik, apakah memang

dibenarkan bahwa suatu negara dapat memiliki kewenangan untuk

membatalkan perjanjian internasional atau suatu negara hanya dapat

menarik diri dari perjanjian internasional pada saat merugikan

kepentingan nasional. Tentu saja pembatalan perjanjian internasional dan

penarikan diri dari perjanjian internasional memiliki akibat hukum yang

berbeda.

Berdiskusi mengenai implementasi perjanjian internasional tidak terlepas

dari bagaimana hubungan antara Hukum Internasional atau Hukum

Nasional. Apakah sebuah Hukum Internasional merupakan sistem

hukum yang sama dengan hukum nasional atau Hukum Internasional

memiliki sistem hukum yang berbeda dengan hukum nasional. Terkait


79

hal ini maka diskusi mengenai teori monism dan dualism dalam hukum

perjanjian internasional sangat menarik untuk dibahas.

Beberapa masalah yang kami coba sampaikan di atas, menunjukkan

bahwa diskusi permasalahan dalam hukum perjanjian internasional

merupakan suatu permasalahan yang menarik untuk didiskusikan dan

memerlukan beberapa sumber untuk mendapatkan jawabannya.

Kehadiran literature-literature terkait hukum perjanjian internasional

sangat diperlukan, khususnya buku-buku yang secara khusus mengkaji

hukum perjanjian internasional baik secara praktik dan teori.

Dr. Iur.s Damos Dumoli Agusman, S.H., M.A. merupakah salah satu ahli

hukum yang sangat memiliki perhatian terkait Hukum Perjanjian

Internasional lebih khusus mengenai Teori Monisme dan Dualisme baik

dari segi praktik maupun teori. Penulis sehari-harinya beraktifitas di

Kementerian Luar Negeri Republik Indonesia sejak tahun 1988, dan

bertugas di Direktorat Hukum dan Perjanjian Internasional, yang tentu

saja selalu terlibat dalam diskusi-diskusi dan pekerjaan yang terkait

dengan perjanjian internasional dimana Indonesia menjadi pihak dalam

perjanjian internasional tersebut. Berbekal aktifitas sehari-harinya di

Direktorat Hukum dan Perjanjian Internasional ini, semakin melengkapi

pribadi penulis yang menurut hemat saya memiliki jiwa akademisi

seperti mengajar dan meneliti. Buku ini Treaties Under Indonesian Law:

A Comparative Study. merupakan intisari dari disertasi pada Doctoral


80

Degree di Goethe University of Frankfurt, Jerman pada 2014, yang secara

lengkap berjudul “The Legal Status of Treaties Under Indonesian Law: A

Comparative Study of China, South Africa, Germany and The

Netherlands”. Penulis mengambil Doctoral Degree bersamaan dengan

ketika beliau mendapat tugas untuk menjadi Konsulat Jenderal Republik

Indonesia di Frankfrurt. Dapat dilihat dari karya-karya penulis

sebelumnya merupakan karya-karya yang secara linear membahas

Hukum Perjanjian Internasional sejak beliau menulis Skripsi untuk gelar

Sarjana dan Thesis untuk gelar Master dari University of Hull pada tahun

1991.

Buku ini merupakan buku mengenai Hukum Perjanjian Internasional

yang kedua yang ditulis penulis, setelah buku yang pertama telah

beberapa kali diterbitkan ulang. Buku tersebut berjudul Hukum

Perjanjian Internasional: Teori dan Praktik Indonesia, diterbitkan oleh

Refika Bandung pada tahun 2010. Buku pertama ini cukup banyak

diminati oleh para mahasiswa dan pemerhati Hukum Perjanjian

Internasional, sehingga telah mengalami cetak ulang untuk memenuhi

permintaan pembaca.

Kehadiran buku Treaties Under Indonesian Law: A Comparative Study,

sepertinya akan melengkapi dan sangat memberikan pengetahuan serta

wawasan bagi para pemerhati Hukum Perjanjian Internasional,

khususnya bagaimana perjanjian internasional diimplementasikan di


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Indonesia, dan di beberapa negara untuk menjadi bahan perbandingan.

Penulis menggambarkan bagaimana perjanjian internasional berkembang

di Indonesia dan beberapa negara, yang pada akhirnya menghasilkan

suatu analisis dari hasil studi banding mengenai bagaimana status

perjanjian internasional berdasarkan hukum nasional masing-masing

negara, tinjauan mengenai hukum perjanjian internasional di beberapa

negara dan yang terpenting adalah bagaimana hubungan antara hukum

perjanjian internasional dengan hukum nasional di negara tersebut..

Buku Treaties Under Indonesian Law: A Comparative Study yang

memiliki 554 Halaman, membahas Hukum Perjanjian Internasional

dalam Enam Bab yang terdiri dari sub bab- sub bab yang saling

mendukung. Sebagaimana yang telah disampaikan sebelumnya bahwa

buku ini merupakan hasil penelitian disertasi penulis yang telah

disesuaikan, sehingga dalam penulisannya penulis menggunakan Bahasa

Inggris. Penggunaan Bahasa Inggris menjadi bahasa dalam penulisan

buku ini merupakan hal yang baik, mengingat buku ini dapat dinikmati

oleh semua pembaca tidak hanya pemerhati Hukum Perjanjian

Internasional yang berasal dari Indonesia, namun juga pemerhati Hukum

Perjanjian Internasional dari luar negeri. Perlunya bagaimana Hukum

Perjanjian Internasional di Indonesia untuk dapat diketahui oleh dunia

internasional, merupakan hal yang cukup penting, sebagai contoh dalam

praktik penanaman modal di Indonesia dengan negara mitra yang biasa

terjalin melalui Bilateral Investment Treaties (BITs), untuk melaksanakan


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BITs tersebut negara mitra ataupun investor negara mitra perlu

mengetahui bagaimana praktik hukum perjanjian internasional di

Indonesia, mengingat BITs merupakan perjanjian internasional yang juga

tunduk pada Vienna Convention on The Law of Treaties 1969.

Enam bab ini terdiri dari Pendahuluan, Status Hukum Perjanjian

Internasional berdasarkan Hukum Nasional berdasarkan Perbandingan

Praktik Negara, Tinjauan mengenai Hukum Perjanjian Internasional di

Cina, Afrika Selatan, Jerman, Belanda dan Indonesia, Hubungan antara

Perjanjian Internasional dan Hukum Nasional di Cina, Afrika Selatan,

Jerman, Belanda dan Indonesia, Analisis Komparatif serta Kesimpulan.

Pada Bab Pertama yang merupakan Pendahuluan, bab ini terbagi lagi

menjadi 4 sub bab yang terdiri dari Pengantar, Sejarah Hukum

Internasional di Indonesia dalam beberapa tahun, Kebutuhan akan

kejelasan mengenai Hukum Internasional di Republik Indonesia dan

Metodologi yang digunakan dalam penulisan buku ini. Pada sub bab

pengantar penulis menjelaskan mengenai Hukum Internasional dan

Hukum Nasional di Indonesia. Dalam Sub Bab ini penulis

mengungkapkan mengenai masih terdapatnya perdebatan mengenai

bagaimana hubungan di antara dua hukum ini, khususnya mengenai

teori monism dan dualism dan juga mengenai teori “adoption” dan

“transformation”. Begitu banyak penelitian yang menulis mengenai

perdebatan ini, dan juga menulis bagaimana beberapa sistem hukum


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menggunakan kedua teori ini untuk pelaksanaan perjanjian internasional.

Dalam bab ini penulis membahas Indonesia sebagai salah satu contoh

khususnya sebagai negara yang merdeka dan bebas dari negara

kolonialnya. Pada dasarnya negara bekas koloni akan mengikuti

pendekatan tradisional dari negara koloninya terkait dengan hubungan

antara hukum internasional dan hukum nasional. Namun demikian,

menurut penulis, hal ini tidak berlaku bagi Indonesia, karena status

perjanjian internasional dalam hukum nasional Indonesia belum dapat

ditentukan.

Permasalahan hubungan antara perjanjian internasional dan hukum

nasional di Indonesia menjadi masalah yang cukup penting. Hal ini dapat

dilihat dari latar belakang yang mungkin sesuai untuk memeriksa

bagaimana pandangan Indonesia mengenai hukum internasional

khususnya hukum perjanjian internasional. Penulis mengutip pendapat

Ko Swan Sik, yang berpendapat bahwa permasalahan mengenai akibat

hukum dari Hukum Internasional dalam kaitannya dengan hukum

nasional sangat terkait dengan sejarah atau pengalaman negara-negara

tersebut di dunia internasional. Dalam sub bab ini penulis juga mencoba

memaparkan bagaimana perkembangan permasalahan hubungan hukum

internasional dan hukum nasional di Indonesia sejak lepas dari negara

koloni sampai dengan era reformasi dan saat ini. Dapat disimpulkan

bahwa perkembangan status hubungan hukum internasional dan hukum

nasional di Indonesia sampai dengan saat ini belum dapat ditentukan.


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Permasalahan mengenai hubungan hukum internasional dan hukum

nasional di Indonesia semakin tajam khususnya apabila terdapat tekanan

internal dan tekanan eksternal. Sebagai contoh dari tekanan eksternal

adalah globalisasi, yang mengakibatkan batas antar negara menjadi tidak

ada batas. Pembahasan selanjutnya adalah mengenai bagaimana

Indonesia dan Hukum Internasional terbagi menjadi 3 fase yaitu fase

Perang dan Kemerdekaan, Fase Orde Baru dan Fase Era Reformasi

sampai dengan sekarang.

Bagian terpenting dari Bab Pendahuluan ini adalah sub bab mengenai

pentingnya untuk mendapatkan kejelasan mengenai Hukum

Internasional dalam sistem hukum Internasional. Penulis menjawab

kebutuhan akan kejelasan hukum internasional ini dari beberapa segi di

antaranya sebagai konsekuensi sistem hukum demokrasi, adanya

kewajiban untuk tunduk pada hukum internasional termasuk di

dalamnya mengenai standar internasional, dan adanya sistem

desentralisasi, dimana kewenangan Pemerintah Daerah terpusat dari

Pemerintahan Pusat.

Pada bab kedua dari buku ini, yang berjudul Analysis of General

Theories: The Legal Status of Treaties under domestic law with reference

to contemporary state practice. Penulis membahas mengenai teori-teori

yang terkait dengan hukum perjanjian internasional khususnya dalam

hubungannya dengan hukum nasional. Dibahas dalam bab ini adalah


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perbedaan antara beberapa aliran terkait implementasi hukum perjanjian

internasional di suatu negara, seperti teori dualism dan monism, teori

adoption dan transformation, serta mengenai non self dan self executing

treaties. Pada bagian terakhir dari bab ini, terdapat pembahasan yang

menarik terkait pengaruh globalisasi yang memberikan pengaruh

mengenai pendekatan hubungan antara hukum internasional dan hukum

nasional, khususnya karena pada masa globalisasi batasan antara satu

negara dengan negara lain menjadi tidak terlihat.

Metode yang digunakan dalam buku ini adalah metode perbandingan.

Penulis melakukan perbandingan dengan beberapa negara dan termasuk

di dalamnya Indonesia. Negara-negara yang menjadi objek perbandingan

penulis terkait dengan tinjauan umum mengenai hukum perjanjian

internasional di negara tersebut, yaitu di antaranya Cina, Afrika Selatan,

Jerman, Belanda dan pada akhirnya Indonesia. Bab yang diberi judul

Overview of the Law of Treaties: China, South Africa, Germany, The

Netherlands and Indonesia merupakan Bab ketiga dari buku ini. Pada

umumnya yang menjadi objek pembanding dari negara-negara tersebut

terkait dengan Hukum Perjanjian Internasional adalah terkait bagaimana

konstitusi dari negara tersebut mengatur mengenai Perjanjian

Internasional, bagaimana hukum dari negara tersebut secara khusus

mengatur hukum perjanjian internasional sesuai dengan hukum nasional

yang digunakan. Perbandingan juga dilakukan dengan meninjau

bagaimana hukum nasional dari negara tersebut memberikan batasan apa


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yang dimaksud dengan perjanjian internasional termasuk mengetahui

terminologi perjanjian internasional yang digunakan treaties atau

international agreements. Hal yang sangat penting yang menjadi objek

perbandingan negara-negara ini adalah terkait Treaty Making Power,

yaitu lebih tepatnya untuk mengetahui bagaimana suatu perjanjian

internasional dapat disepakati atau dibuat oleh negara-negara, terhadap

lembaga atau badan mana yang memiliki power untuk membuat atau

menyetujui perjanjian internasional di negaranya. Pembahasan treaty

making power juga terkait dengan bagaimana aspek politik dan ekonomi

mempengaruhi di suatu negara. Khusus untuk Indonesia, Penulis

membahas treaty making power dilihat dari sejarahnya berdasarkan

konstitusi terdahulu sampai dengan sekarang, bagaimana akhirnya

perjanjian internasional dibuat secara bersama antara Presiden dan DPR.

Penulis membahasnya tentu saja dengan meninjau ketentuan Undang-

Uundang No.24 Tahun 2000 tentang Perjanjian Internasional.

Apabila pada Bab III penulis melakukan studi perbandingan dengan

beberapa negara terkait dengan hukum perjanjian internasional, Maka

pada bab selanjutnya atau Bbab IV penulis melakukan perbandingan

dengan negara yang sama, namun pada bab ini perbandingan dilakukan

terkait dengan hubungan antara perjanjian internasional dan hukum

nasional. Seperti yang telah dijelaskan di muka bahwa hubungan antara

hukum perjanjian internasional dan hukum nasional atau dalam hal ini

hukum internasional dengan hukum nasional selalu menjadi topik


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diskusi yang menarik terkait dengan apa pun, khususnya mengenai

bagaimana sikap negara memberikan status perjanjian internasional

dalam hukum nasionalnya. Negara-negara yang menjadi objek studi

perbandingan penulis masih sama dengan bab sebelumnya yaitu negara-

negara China, Afrika Selatan, Germany, Netherlands, dan tentunya

Indonesia. Pembahasan Bab IV ini yang diberi judul The Relationship

Between Treaties and Domestic Law: China, South Africa, Germany,

Netherlands, and Indonesia. Hubungan antara perjanjian internasional

dan hukum nasional dibahas oleh Penulis dengan memaparkan beberapa

hal, di antaranyayaitu, kerangka konstitusi di masing-masing negara

terkait perjanjian internasional dan hukum nasional, status perjanjian

internasional khususnya dalam hukum nasional suatu negara, praktik

non self dan self executing treaties di suatu negara, bagaimana hierarki

peraturan perundang-undangan berdasarkan hukum nasonal mengakui

perjanjian internasional, dan yang tidak kalah penting terkait dengan

bagaimana sikap pemerintah terhadap perjanjian internasional,

khususnya terkait kewenangan pengadilan suatu negara untuk

melakukan judicial review terhadap perjanjian internasional. Di

Indonesia diskusi terkait bagaimana status perjanjian internasional dalam

hukum nasional masih terus berkembang, bahkan perdebatan di antara

para sarjana pun masih terus terjadi.

Sesuai dengan judulnya A Comparative Study, maka setelah dua bab

penulis menggambarkan hasil dari studi perbandingan di beberapa


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negara baik terkait perjanjian internasional maupun hubungan hukum

antara hukum internasional dan hukum nasional, pada bab lima dari

buku ini dibahas mengenai analisa dari studi perbandingan tersebut

(Comparative Analysis). Hasil studi perbandingan tersebut dikerucutkan

oleh penulis menjadi beberapa hal penting terkait dengan keterlibatan

atau partisipasi parlemen dalam hal perjanjian internasional,

mengidentifikasi kriteria dari perjanjian internasional yang harus

mendapatkan persetujuan parlemen, khususnya terkait dengan proses

ratifikasi dari perjanjian internasonal, mengidentifikasi perjanjian

internasional yang terinkorporasi secara langsung dalam hukum

nasional, hierarki atau tata urutan perjanjian internasional berdasarkan

hukum nasional dan permasalahan mengenai non self executing treaties.

Terkait dengan hierarki perjanjian internasional berdasarkan hukum

nasional di Indonesi, penulis berpendapat bahwa hierarki mengenai

perjanjian internasional di Indonesia masih belum mendapatkan

kepastian, karena tidak adanya rezim hukum yang pasti untuk

menentukan dimana status dari perjanjian internasional tersebut. Hal ini

salah satunya terkait perdebatan dan perbedaan pendapat di antara

penganut paham monism dan dualism. Ketidakjelasan mengenai hierarki

perjanjian internasional dalam hukum nasional di Indonesia, sama hal

nya dengan mengenai permasalahan non self executing treaties di

Indonesia.


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Pada akhir dari buku Treaties Under Indonesian Law: A Comparative

Study penulis menutupnya dengan Bab Kesimpulan atau conclusion dari

penelitian dan studi perbandingan yang telah dilakukan. Penulis

memberikan beberapa hal untuk kesimpulan terkait dengan perjanjian

internasional berdasarkan Hukum Indonesia. Suatu kritikan dan

pendapat penulis terkait dengan perjanjian internasional di Indonesia,

adalah bahwa masih terdapatnya peraturan di Indonesia khususnya

dalam bentuk konstitusi yang masih bersifat ambiguity terkait dengan

perjanjian internasional berdasarkan hukum nasional. Dapat

ditambahkan bahwa ketidak jelasan ini juga termasuk bagaimana sikap

pemerintah memberikan status terhadap perjanjian internasional. Selain

itu catatan juga diberikan oleh penulis terkait dengan policy options,

yang seharusnya ditentukan oleh Indonesia. Sebagai penutup, penulis

juga memberikan kesimpulan atau catatan terkait keterlibatan parlemen

dalam perjanjian internasional, kriteria dari perjanjian internasional yang

memerlukan keterlibatan parlemen dikaitkan dengan Undang-Uundang

No. 24 Tahun 2000 tentang Perjanjian Internasional, metode terkait

perjanjian internasional yang terinkorporasi dalam hukum nasional dan

status perjanjian internasional dalam hierarki peraturan perundang-

undangan.

Pembahasan mengenai Hukum Perjanjian Internasional dalam buku ini

serta dalam bentuk penyajian perbandingan dengan beberapa negara

terkait praktik perjanjian internasional, membuat buku ini memiliki nilai


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lebih untuk dapat dibaca oleh semua kalangan baik akademisi,

mahasiswa, praktisi dan Pemerintah, khususnya bagi Pemerintah

Republik Indonesia yang sering terkait dengan praktik pelaksanaan

perjanjian internasional atau yang terlibat dalam pembuatan perjanjian

internasional dimana Indonesia menjadi pihak.

***


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GLOSSARY

Rebus sic stantibus:

Legal doctrine in public international law which allow treaties to become

inapplicable because of a fundamental change of circumstances. This

clause is an exception to the general rule of pacta sunt servanda. Some

aspects of rebus sic stantibus is codified in Article 62 of the Vienna

Convention on the Law of Treaties. Clausula rebus sic stantibus does not

apply if the parties to a treaty had contemplated for the occurence of the

changed circumstance. It only relates to the changed circumstances that

were never contemplated by the parties.

Jus cogens:

Jus cogens is a fundamental, overriding principles of imternation law,

form which no derogation is ever permitted. In practice, jurists attempt to

classify certain rules, rights and duties as jus cogens or peremptory norms

have not met with success: while there is near-universal agreement for

existence of the category of jus cogens norms, there is far less agreement

regarding the actual content of this category.


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Let Justice be done though heavens will fall.

- William Murray, 1st Baron Mansfield -

“

”


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TENTANG PENULIS

Prof. Dr. Stefan Kadelbach

Beliau adalah Profesor pada Faculty of Law Johann Wolfgang Goethe – University Frankfurt semenjak tahun 2005. Kini beliau menjabat sebagai Chair of Public Law, European and International Law dan Co-Director of the Wilheim Merton Centre for European Integration and International Economic Order.

Prof. Simon Butt, B.A. LL.B., Ph.D.

Profesor Simon Butt adalah ARC Australian Postdoctoral Research Fellow pada Sydney Law School. Sebelumnya Penulis menempuh program pendidikan Law School (di University of Sydney. Beliau kemudian memperoleh gelar PhD di University of Melbourne, dan memutuskan untuk bergabung dengan almamaternya, University of Sydney sebagai Associate Director pada Centre for Asian and Pacific Law.

Abdulkadir Jaelani, S.H., M.H., M.A. Penulis adalah lulusan Fakultas Hukum Unair dan meraih gelar Master of European Law and Policy di Portsmouth University pada tahun 2002. Saat ini beliau menjabat sebagai Direktur Perjanjian Ekososbud di Direktorat Jenderal Kementerian Luar Negeri, jabatan yang dipangkunya semenjak tahun 2012. Dr. Haryo Budi Nugroho S.H., L.L.M. Dr. Haryo Budi Nugroho bergabung dengan Kementerian Luar Negeri Indonesia pada tahun 2007 setelah sebelumnya bekerja sebagai pegawai magang sejak tahun 2005. Saat ini ia bertugas di Direktorat Perjanjian Politik, Keamanan dan Kewilayahan. Dr. Haryo memperoleh gelar Sarjana Hukum dari Universitas Indonesia, dan Master of Laws (LL.M.)


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serta Doctor of Juridical Science (S.J.D.) dari University of Virginia School of Law di bidang hukum laut. Prita Amalia, S.H. MH. Prita Amalia adalah lulusan S2 Fakultas Hukum Universitas Padjajaran pada tahun 2009. Saat ini beliau mengajar di bidang Hukum Perdagangan Internasional sekaligus menjabat sebagai Lektor Fakultas Hukum Universitas Padjajaran.


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Jurnal Hukum dan Perjanjian Internasional

OPINIO JURIS

Jurnal Opinio Juris menerima tulisan dengan tema hukum internasional, perjanjian internasional, diplomasi, hubungan internasional, dan isu-isu dalam negeri yang memiliki dimensi hukum dan perjanjian internasional. Ketentuan Penulisan:

1. Panjang tulisan 10—20 halaman kertas A4 (termasuk abstraksi, isi, catatan kaki, dan daftar pustaka), format MS Word, spasi satu setengah, font Times New Roman ukuran 11. Untuk catatan kaki, spasi satu dan font Times New Roman ukuran 10;

2. Tulisan dapat dibuat dalam bahasa Indonesia atau bahasa Inggris; 3. Setiap naskah harus disertai abstraksi maksimal 1 halaman A4. Untuk tulisan

dalam bahasa Indonesia, abstraksi dibuat dalam bahasa Inggris dan untuk tulisan dalam bahasa Inggris, abstraksi dibuat dalam bahasa Indonesia. Jumlah kata abstraksi sekitar 100 kata.

4. Rujukan dibuat dalam bentuk catatan kaki (footnote); 5. Tulisan harus asli dari penulis, belum pernah diterbitkan, dan tidak sedang

dikirimkan ke penerbit lain; 6. Untuk setiap naskah yang masuk, redaksi berhak mengedit dengan tidak

mengubah maksud dan isi tulisan; 7. Apabila diperlukan, redaksi akan memberikan masukan dan rekomendasi

kepada penulis tentang tulisan yang dikirim; 8. Setiap naskah yang dikirim harus disertai daftar riwayat hidup singkat

penulis (curriculum vitae) yang setidak-tidaknya terdiri dari pekerjaan, pendidikan, alamat, dan nomor telepon yang bisa dihubungi;

9. Setiap naskah yang disetujui untuk diterbitkan akan mendapatkan kompensasi finansial;

10. File naskah beserta kelengkapan lainnya dapat dikirim ke email Redaksi. 11. Keputusan untuk menerbitkan atau menolak penerbitan suatu naskah

berada pada redaksi dengan tidak dapat diganggu gugat.

Sekretariat Direktorat Jenderal Hukum dan Perjanjian Interansional Kementerian Luar Negeri

Jalan Taman Pejambon No. 6 Jakarta Pusat Telp: +62 21 3846633 Fax: +62 21 3858044

Email: [email protected] http://pustakahpi.kemlu.go.id/

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