IMPLEMENTATION OF INTERNATIONAL TREATY IN INDONESIA AND ADOPTION OF THE INDONESIAN COURT

서지정보

· 발행기관 : 연세대학교 법학연구원
· 수록지 정보 : 법학연구 / 28권 / 1호 / 303 ~ 337페이지
· 저자명 : Rina Shahriyani Sharulla, 박지현

초록

Indonesia has not ratified the Vienna Convention 1969 on the Law of Treaties. However, Indonesia replicated the provisions of the Vienna Convention 1969 as references when it promulgated Law No.24 of 2000 concerning Treaties. In this regard, Indonesia treated the international norms and principles under the Convention as customary international law.
The approach raises a question whether the Indonesian Treaty Law entirely implements the Convention. To answer this question, this research examines the provisions of the Indonesian Treaty Law and compares it to the Vienna Convention 1969. It is found that to some extents, the Indonesian Treaty Law replicates the Vienna Convention 1969. However, it also contains ambiguous provisions which cause different approaches to the meaning and applications of a treaty between the Law and the Convention.
This research also examines and analyzes the courts’ decisions and it is found that the courts have various approaches to the application of a treaty. As a result, it is not clear whether the courts adopt the approach of Monism, Dualism or the mixure of them because of their flexible attitude towards the implementation of a treaty. It is concluded that the Indonesian Treaty Law has weaknesses, therefore it needs to be amended.
The Academic Draft and Bill Draft to the amendment of the Law have been submitted to the House of Representatives. They are included in the National Legislation Program 2015-2019. Based on the analysis of the two drafts, it is apparent that the proposed amendments are still not able to fill the lacunas of the Indonesian Treaty Law since they remain silent as to whether the Law which ratifies a treaty can be judicially reviewed by the Constitutional Court. They also provide no clues as to whether the Indonesian courts should adopt the approaches of Monism, Dualism or the mixture of them.

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