JURNAL OPINIO JURIS
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Vol. 17  Januari – April 2015
: Treaties Under Indonesian Law: A Comparative
Study
: Dr. iur. Damos Dumoli Agusman
: PT. Remaja Rosda Karya
: Inggris
: 554 Halaman
: Oktober 2014
: 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.
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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
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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.
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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
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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
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clearly
maintains
that
Vol. 17  Januari – April 2015
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
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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.
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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
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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 multidimensional one in which a variety of alternative narratives may
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flourish. The introduction of such
Vol. 17  Januari – April 2015
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 ;
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c.
Vol. 17  Januari – April 2015
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
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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.
***
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