As of January , the Covenant has parties. Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative civil and political versus positive economic, social and cultural rights. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories , shall promote the realisation of the right of self-determination , and shall respect that right, in conformity with the provisions of the Charter of the United Nations. The drafts were presented to the UN General Assembly for discussion in , and adopted in Part 1 Article 1 recognises the right of all peoples to self-determination , including the right to "freely determine their political status",  pursue their economic, social and cultural goals, and manage and dispose of their own resources.
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It has, for example, signed many international treaties. This has led to a significant unresolved legal debate about whether Indonesia follows monism or dualism. 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.
Indonesia has signed and ratified many international agreements 1 These include the key human rights treaties, such as Convention on the Rights of the Child, Nov. Treaty Doc. T reaty. Asia F. Many commentators have criticised Indonesia for failing to comply with international agreements it has ratified, including some concerning human rights 4 See generally Anya Jetschke , Human Rights and State Security: Indonesia and the Philippines ; Luke Lazarus Arnold, Acting Locally, Thinking Globally?
World Aff. 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.
Different states have adopted different methods depending on the source of international law in question. For example, some states provide that, once ratified, international agreements override domestic law to the extent of any inconsistency. Many countries, but not all, allow customary international law to automatically operate in their domestic legal systems.
The courts of many countries have adopted presumptions that domestic lawmakers intend to comply with international treaties and custom when making domestic laws. 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.
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:. As the German jurist, H. Triepel, observed in , 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. Indonesian laws covering international agreements focus almost entirely on the processes of entering into and negotiating treaties. Its only reference to international agreements is found in Article 11, which states, in my translation:.
The letter declared that, in the opinion of the government, Article 11 of the Constitution did not apply to all types of agreements with foreign states. As for all other types of international agreements, the National Parliament would be simply informed of them after they had been entered into. The letter explained that if the government was required to seek prior parliamentary approval for all agreements, however trifling their subject matter, the government would be unable to properly engage in international relations.
This, the letter continued, would impede the conduct of international relations, which often required swift action. Despite its questionable legal status, the letter was considered valid and was largely followed.
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.
Most Indonesian scholars have focused almost exclusively on the position of treaties, 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. Although I argue that these decisions appear indicative of monism, my analysis is, again, tentative.
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. 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.
Many also outline monism and dualism and the differences between them, but only some then consider which of these prevails in Indonesia. 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. Kusumaatmadja sole-authored the first edition in See Mochtar Kusumaatmadja, Tokoh Indon. However, Kusumaatmadja argues that this does not necessarily mean that international law is inferior to domestic law in Indonesia. See generally Agusman, supra note According to Agusman, Law No. However, there appears to be more uncertainty within government than Agusman suggests.
In the ASEAN Charter Case the government even called an expert, Dr Wisnu Aryo Dewanto, to give an opinion about whether treaties ratified in Indonesia automatically became part of Indonesian law and could be applied by national courts. His testimony—that Indonesia is dualist, at least as a matter of practice—appears to be the dominant scholarly view, discussed below. Yet in its Directive, the Indonesian Supreme Court applied the diplomatic community principle in Article 31 of the Convention to a domestic land dispute involving the Saudi Arabian embassy in Indonesia.
Agusman, whose work provides perhaps the most detailed examination of whether Indonesia follows monism or dualism, lists additional indications of monism. First, he points to Article 13 of the International Agreements Law, which stipulates that every statute or presidential regulation that ratifies an international agreement must be published in the State Gazette.
All Indonesian statutes and many other types of laws have official elucidations penjelasan. These three indicators are hardly convincing arguments for monism. Importantly, it does not say that a treaty itself becomes binding by the inclusion of its ratifying law in the State Gazette. Rather, it appears to merely require publication of ratified treaties. On my reading, Article 7 of the Human Rights Law in fact appears to indicate that Indonesia usually follows dualism.
If Indonesia followed monism, then there would be no need to specifically prescribe that international human rights received by Indonesia become part of national law. Law No. Again, if Indonesia followed monism, Article 26 would be superfluous. Finally, the Constitutional Court did not give independent authority to a rule of international law in the Truth and Reconciliation Commission Case. Rather, the Court referred to international norms to support its own interpretation of Indonesian law.
The Court commonly uses international law in this way—an issue to which I return below. Given the paucity of evidence for monism provided in the literature, it is unsurprising that most Indonesian scholars conclude that Indonesia is dualist. Many of these scholars refer to two examples to support this conclusion. However, this ratification did not disturb Law No.
Only when Law No. This was ratified by Presidential Decree in However, the Supreme Court refused to apply the Convention to enforce foreign arbitral awards in Indonesia—including in a famous case 42 Decision, No. From these examples, scholars have extrapolated principles along the following lines: Ratification of a treaty will, in itself, be insufficient to render an international agreement enforceable in Indonesia.
Juwana explains that after the Convention was ratified, there was debate over whether the Convention could be applied directly without transformation by way of implementing regulation.
Articles 71 through 82 of the Law sought to transform the Convention into Indonesian law, but according to Juwana, this was flawed. Details of the Convention were lost in the translation.
Also, aspects of the Convention should have been reflected in amendments to other Indonesian statutes. This resulted in uncertainty because judges needed to decide whether to apply the Aviation Law or the Bankruptcy Law when airlines became bankrupt.
Importantly, however, these scholars base their conclusion that Indonesia is dualist entirely on an examination of practice. There appears to be less discussion, let alone agreement, about whether the evidence of dualist practice means that Indonesia is also dualist in theory , or at law, with most scholars simply not making the distinction.
In my view, it is at least arguable that Indonesia is at least partly monist as a matter of law. Indonesia thereby inherited Dutch laws and institutions, and even the civil law tradition.
How then to explain that many, if not most, international treaties need to be replicated in an Indonesian law in order to be applied and domestically enforced? Much appears to depend on the nature of the international agreement. On the other hand, treaties with more specific and detailed subject matter are, in fact, likely to be routinely followed by those to whom they pertain as if they were binding, particularly if there is no relevant contradictory Indonesian law.
Many of these are bilateral and largely uncontroversial, and their existence and application garner relatively little public attention. They are very rarely called upon to be enforced by courts, as occurred in the case involving the Saudi Arabian embassy.
This approach appears to be consistent with the view of Kusumaatmadja, which is expressed later in his book but often ignored by other Indonesian scholars.
He admits that even though the international agreements that Indonesia has signed are formally binding, if those agreements require changes to domestic law, they will often go unheeded by officials until those changes are made. He reasons that new laws or amendments will be required if, for example, international law creates offences not previously known in Indonesian criminal law.
In the event of inconsistency between domestic law that has not yet been amended for judges or the relevant person, the only criterion [to determine] whether a state is bound or not, is whether the agreement legally binds us or not. Another well-known Indonesian legal scholar, Professor Saudargo Gautama, appears to take a similar view, arguing in the following passage that the Supreme Court should have applied the New York Convention in the case 55 Decision, No.
International Covenant on Economic, Social and Cultural Rights
Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life , freedom of religion , freedom of speech , freedom of assembly , electoral rights and rights to due process and a fair trial. States must report initially one year after acceding to the Covenant and then whenever the Committee requests usually every four years. The Committee normally meets in Geneva and normally holds three sessions per year. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories , shall promote the realization of the right of self-determination , and shall respect that right, in conformity with the provisions of the Charter of the United Nations. Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural Rights.
International Covenant on Civil and Political Rights
Furthermore, this study will assess how the national law provides justiciability as well as redress if the violations of socio-economic rights occur. However, some violations have occurred these days both by commission and omission of the government, such as in the Lapindo and Mesuji case. These two cases show that the rights to adequate housing, work, health, healthy environment, and rights to land have been severely violated. In the case of Lapindo, the decision of the court regarding the violations of socio-economic rights was unreasonable; they did not even put the element of tort into consideration for their decision concerning the human rights norm. For the second case, the process of legal settlement is still ongoing. Thus, the government has to establish a comprehensive policy to redress the violation of the socio-economic rights as these rights are not justiciable before the national law. If national law does not provide enforcing element, citizens will have no place to file a complaint for the violation of socio-economic rights.
The Position of International Law Within the Indonesian Legal System |