The Legal Status of Treaty/international Agreement and Ratification in the Indonesian Practice within the Framework of the Development of the National Legal System

By Pratomo, Eddy; Riyanto, R. Benny | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

The Legal Status of Treaty/international Agreement and Ratification in the Indonesian Practice within the Framework of the Development of the National Legal System


Pratomo, Eddy, Riyanto, R. Benny, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Globalization is here and the advancement of science and technology allow borderless interaction become easier. Croucher (2004) defined globalization as a process of blending or homogenization by which the people of the world are unified into a single society and function together. This process is a combination of economic, technological, sociocultural and political forces (for a useful consideration in economic field, Kurniawan, 2017). States encounter in the globalization era promotes conclusion of agreements or treaties whether it is bilateral, regional, as well as multilateral. Indonesia has become party to numerous international agreements and obligated to implement it. The contemporary practice with regard to the dynamics of negotiating, forming, ratifying a treaty has become main issue in inter-state relations. It is related to a wide range of subjects including trade, investment, defence, social cultural and tourisms. Recent multilateral treaty, such as the Trans-Pacific Partnership (TPP), the Paris Agreement under the United Nations Framework Convention on Climate Change 2015, as well as new model of bilateral investment treaty, has obtained special attention by the international community.

The Indonesian public generally understood "treaty" or "international agreement" as any kind of agreement that have cross-border/transnational nature. Thus, some viewed the Helsinki MoU between the Government of Indonesia and the Free Aceh Movement as international agreement. This is due to the fact that the negotiation is conducted in a foreign country and facilitated by foreign agency. Similarly, MoU between Indonesia and Vietnam with regard to purchase of rise by Indonesia are considered as an international agreement, by the mere fact that it has transnational nature. The Public is not entirely wrong; the Indonesian domestic law does not have a uniformed definition of what constitute a treaty. This has caused confusion in the domestic audience. Generally, international agreements or treaties are incorrectly understood as cross border agreements both in public as well as private law domain. Common mistake that occurred in Indonesia is to mix between international agreements with international contract. Basically, the term "contract" can be generally defined as an agreement which binds the parties concerned. In other words, a contract is an agreement which is enforceable by law. To have an agreement, there must be an offer and acceptance of that offer (Kian & Chim, 2001; Maryan, 1973).

In other countries which are more advance in their legal system, civil law as well as common law countries, the choice of legal politics has been determined at the end of the World War II. They have decided between the monist and dualist, between incorporation and transformation. Despite the fact that Indonesia has become party international agreements, Indonesia is yet to have a clear legal politic in its national law. In the region, a country such as Thailand, China and Vietnam choose the mixed approach, but has a firm ground to upheld international law if there is a conflict between international and national law. Following the introduction, this article will elaborate the current practice in Indonesian system with regard to various international law instruments. It will also discuss two main theories on how international law is perceived by national law, namely the monist and dualist theory. This article then will continue by elaborating the three core problems in Indonesian national practice namely 1) ununiformed definition of international agreement or treaties; 2) concept of ratification of international agreements in national law; and 3) legal status of international agreements in domestic legal system. As a closure, this article will conclude and make recommendations.

THE CORE PROBLEMS IN THE INDONESIAN CURRENT PRACTICES

The current stage of the practice of Indonesia in domestic legal system has caused three core problems namely 1) ununiformed definition of international agreement or treaties; 2) concept of ratification of international agreements in national law; and 3) legal status of international agreements in domestic legal system. …

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