The Position of International Law Within the Indonesian Legal System

• Citation: Vol. 28 No. 1
• Publication year: 2014
• topic: Constitutional Law

The Position of International Law Within the Indonesian Legal System

Simon Butt

THE POSITION OF INTERNATIONAL LAW WITHIN THE INDONESIAN LEGAL SYSTEM

Simon Butt^*

Abstract

Indonesia's role in international and regional affairs has increased markedly since the fall of Soeharto in 1998. It has, for example, signed many international treaties. However, Indonesian law is silent on the position of international law, whether treaty or custom, in Indonesia's legal system. This has led to a significant unresolved legal debate about whether Indonesia follows monism or dualism. This Article argues that, while Indonesia appears to be dualist in practice, there is some evidence of monism, particularly in the decisions of Indonesia's Constitutional and Supreme Courts. Regardless, the uncertainty has allowed the Indonesian government to, on the one hand, leave the international community to believe that ratified treaties have automatic application, but on the other hand, to refuse to grant any rights to citizens that those international treaties seek to provide, claiming that treaties have no domestic application until incorporated by an Indonesian legal instrument.

Introduction

Indonesia, the world's fourth most populous country, is an important player in international and regional affairs. Indonesia has signed and ratified many international agreements¹ and is expected to soon ratify more, including the

[Page 2]

Rome Statute.² By 2013, Indonesia had served three terms on the United Nations Human Rights Council and in 2011 chaired the Association of South-East Asian Nations ("ASEAN"). Indonesia's international position is likely to become only more prominent. Largely unaffected by the recent global financial crisis, Indonesia's economy has grown by more than six percent per annum since 2010 and, by some estimates, could become the world's fourth largest by 2040.³

Many commentators have criticised Indonesia for failing to comply with international agreements it has ratified, including some concerning human rights⁴ and international trade.⁵ In this Article, I focus on one issue that appears to impede this compliance: the absence of domestic Indonesian legal rules specifying the way that international law, once ratified, enters into force in the Indonesian legal system.

Of course, state sovereignty demands that nations decide how international legal obligations and rights are received into their own domestic legal systems, and "what status and rank in the hierarchy of municipal sources of law to assign to [them]."⁶ Different states have adopted different methods depending

[Page 3]

on the source of international law in question.⁷ For example, some states provide that, once ratified, international agreements override domestic law to the extent of any inconsistency.⁸ Others deny legal effect to international agreements until they are "transformed" into domestic law.⁹ Yet others allow so-called "self-executing" treaties to be automatically applied.¹⁰ Many countries, but not all, allow customary international law to automatically operate in their domestic legal systems.¹¹ The courts of many countries have adopted presumptions that domestic lawmakers intend to comply with international treaties and custom when making domestic laws.¹² Some of these courts have then had resort to sources of international law to aid them in the interpretation and application of their domestic constitutions and other laws.¹³

Perhaps uniquely, Indonesia appears to have made no explicit choice about how international law enters domestic law. This is a fundamental problem because, as Cassese states:

International law cannot stand on its own feet without its "crutches", that is . . . international law cannot work without the constant help, co-operation, and support of national legal systems. As the German jurist, H. Triepel, observed in 1923, international law is like a field marshal who can only give orders to generals. It is solely through the generals that his orders can reach the troops. If the generals do not transmit them to the soldiers in the field, he will lose the battle.¹⁴

Indonesian laws covering international agreements focus almost entirely on the processes of entering into and negotiating treaties. Indonesia's Constitution, for example, is silent on the status of international law within the Indonesian legal system. Its only reference to international agreements is found in Article 11, which states, in my translation:

(1) The President, with the approval of the National Parliament, declares war and peace and creates agreements with other nations.

[Page 4]

(2) When creating international agreements that give rise to consequences that are broad and fundamental to the life of the people, create financial burdens for the State and/or require amendments to legislation or the enactment of new legislation, the President must obtain the agreement of the National Parliament.
(3) Further provisions on international agreements are to be regulated by statute.¹⁵

Likewise, Indonesia's Law on International Agreements, enacted in 2000, determines who can negotiate and sign treaties on Indonesia's behalf, and how treaties are ratified under Indonesian law.¹⁶

This Article aims to identify and describe the relationship between international law and domestic law within the Indonesian legal system. Given the regulatory lacuna just described, I examine two additional legal mediums that appear to illuminate the relationship. The first is academic literature, known as doktrin, or "doctrine." Doctrine is more influential on the work of lawyers and judges in many civil law countries, such as Indonesia, than in common law countries, with the work of some highly-respected legal scholars considered as a source of law.¹⁷ Part I highlights scholarly debates about whether Indonesia follows "monism," where international law automatically forms part of domestic law, or "dualism," where international law does not form part of domestic law until it is transformed or implemented in domestic law, such as by passage of legislation or another type of regulation. Most Indonesian scholars have focused almost exclusively on the position of treaties,

[Page 5]

ignoring other importance sources of international law such as custom. As we shall see, most Indonesian scholars conclude that Indonesia is dualist, at least in respect of treaties, observing that many ratified international treaties lie dormant and unenforceable until they are transformed into domestic law by statute or regulation. I reach a different, albeit tentative, conclusion, arguing that Indonesia may well be monist, at least at law. Whether incorporation is necessary is likely a practical rather than legal matter, and depends on the nature of the international agreement and the types of rights and obligations it imposes. There has, in the literature, emerged no discussion about the extent to which international law can or should be used by courts to interpret Indonesian law.

The second source I examine in this Article is the jurisprudence of Indonesia's highest courts. In several decisions, discussed in Part II of this article, Indonesia's Supreme and Constitutional Courts have either directly applied or been strongly influenced by international law. Although I argue that these decisions appear indicative of monism, my analysis is, again, tentative. As I demonstrate below, the Supreme and Constitutional Courts' use of international law has been inconsistent. Also, like most civil law countries, Indonesia lacks a formal system of precedent. These decisions and the approaches the courts take to international law in them are therefore neither sources of law nor formally binding as they might be in common law countries.

Whatever the true position of international law is within Indonesian domestic law, the result in Indonesia is significant uncertainty and confusion about whether rules contained in international treaties ratified by Indonesia automatically form part of Indonesian law. This has serious ramifications, some of which I consider in my conclusion.

I. Doctrine

Indonesian scholarly discourse about the position of international law within the Indonesian legal system is undeveloped-leading one scholar to urge others academics to turn their attention to this issue.¹⁸ Many Indonesian international law texts have chapters entitled "international law and domestic law" or something similar, but most of them, like the Constitution and the Law

[Page 6]

on International Agreements mentioned above, focus on the technical aspects of treaty-making, including negotiation, acceptance, signature, exchange of documents, ratification, accession and reservation¹⁹ Many also outline monism and dualism and the differences between them, but only some then consider which of these prevails in Indonesia.²⁰ Again, although Indonesian scholars distinguish between the various sources of international law in other chapters of their texts, they tend to focus exclusively on how treaties enter Indonesian law, ignoring the other sources, such as custom.

Most authors point to two grounds indicating that Indonesia is fully or partially monist. The first is the work of Professor Mochtar Kusumaatmadja. Formerly Dean of the Faculty of Law at University of Padjadjaran in Bandung, Indonesian Justice Minister (1973-78), and Indonesian Foreign Minister (1978-83), Kusumaatmadja is a prominent and widely-respected proponent of monism and the lead author of Indonesia's foremost international law text, Pengantar Hukum Internasional (Introduction to International Law), which is prescribed for international law classes in many Indonesian law schools.²¹ Kusumaatmadja observes that, while most countries specify the position of international law in their domestic laws or even their constitutions, Indonesia does not.²² However, Kusumaatmadja argues that this does not necessarily mean that international law is inferior to domestic law in Indonesia.²³ Pointing to...