1. law, govt and politics

JURNAL OPINIO JURIS
Vol. 17  Januari – April 2015
BOOK REVIEW
: Treaties Under Indonesian Law: A Comparative
Judul
Study
Penulis buku
: Dr. iur. Damos Dumoli Agusman
Penerbit
: PT. Remaja Rosda Karya
Bahasa
: Inggris
Jumlah halaman
: 554 Halaman
Tahun penerbitan
: Oktober 2014
Pembuat resensi
: Prof. Dr. Stefan Kadelbach, LL.M.
As it was the case in many other countries in the Southern
Hemisphere, Indonesia’s relation to international law has gone through
different stages after reaching independence. After a critical period when
all international law was regarded as the product of the colonial powers,
i.e. the North and West, developing countries practices gradually led to a
consolidation that marked the beginning of the next stage. In the
subsequent stage, reforms of the government system resulted in a new
orientation. While in systems of monocracy the executive was the main
actor for the conclusion of treaties, now the coordination with the
legislative power which represents the people became necessary. Like in
many other states, this change takes place without any important changes
of the text of the constitution..
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The book aims at extracting criteria according to which the future
development might take place from comparative legal studies. For that
purpose the author examines Indonesia and four other legal orders
namely the People’s Republic of China, as an aspiring country that plays
an important role in international economic relations and thus faces
similar challenges; the Republic of South Africa, as a state that is similar
to Indonesia in facing the task of placing its international treaty practice
on a new basis after dealing with profound internal turmoil; the
Netherlands, as the legal order from which Indonesian law has developed
with respect to some essential elements; and, finally, as a contrast, the
Federal Republic of Germany which is similar to the Netherlands for
having abundant practices and scientific knowledge, but follows a
different model.
II
The Book is divided into six chapters: (1) An introduction chapter,
describing the Indonesian parameter, the problem and outlining the
methods used; (2) a theoretical chapter on general theories of the domestic
validity of international law; (3) an overview of the Außenstaatsrecht (law
pertaining to the international relations of a state) of the five legal orders
under review; (4) a comparative description of these legal orders
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according to six different parameters, (5) an appraisal of the material
presented and (6) conclusions for future Indonesian practices.
(1) The introduction gives an account of the different stages of Indonesian
constitutional development. The first stage took place from 1945/1949
until 1966, marked by a hostile attitude towards international law. They
include the nationalization of foreign assets, the unilateral claim to the
Indonesian archipelagic waters in contradiction to contemporary
international law of the sea and Indonesia’s withdrawal from the United
Nations. The second stage (1966-98) was marked by the motto of ’making’
instead of ‘breaking’ of international law (p. 12). This period is
characterized by the attempt to use and influence international law for
Indonesia’s interests, referencing the appeal to the International Court of
Justice for the settlement of a dispute with Malaysia and the so-called
Asian Values Debate. The third stage begins in 1998 end stretches until
today; itis characterized by notable changes ensuing democratization on
the internal level, and globalization on the external level to put into
motion a reform process that has reallocated the weight within the
internal part of the process of the conclusion of treaties. Another factor is
the new Charter of the ASEAN Community that creates new international
obligations with respect to the internal constitutionalization of its
members. Another condition for the Indonesian state system are
centripetal powers that show the necessity to decentralize state
administration and possibly to provide subordinate levels of authority
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with more competences (see p. 24) due to the heterogeneity of the
population.
The author elucidates his approach in the second part of the introduction.
He departs from the dichotomy between monism and dualism in order to
extract criteria for the classification of the different settings of the
constitutional debate. Despite the known objections against these theories
and their validity, the author still aims at using them as an analytical
framework. It will be demonstrated that there are specific features in the
Indonesian legal system that might account for these differences. In the
last part the author justifies the choice of the four legal orders under
review in greater detail and very convincingly and further offers an
overview of the following chapters.
(2) In the beginning of chapter two, the dispute between monism and
dualistm and its development through the ages is discussed. Essentially,
the obvious question is whether international law and domestic law are
one single legal sphere, resulting in the fact that international law is only
left to be applied domestically, or whether they are two separated legal
orders, resulting in the necessity of an implementing act of international
law for the purposes of domestic law. This discussion has been
considered obsolete for a long time now since both positions have moved
very close to each other. However, as they played an important role for
the formation of national constitutions, knowledge of this debate is
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necessary in order to understand the differences in various systems. It
should not be overlooked that the debate between both sides often
continues within the framework of written constitutions if they can be
interpreted according to both theoretical approaches. According to the
author, monism in particular has received new impulses by the
development of international human rights (p. 51). This view is possible;
especially since this concerns mainly legal norms that can be directly
applied in domestic law and since their content is similar to that of
constitutions. After this general introduction concerning the dispute,
dualism is introduced and is ascribed via Heinrich Triepel and Dionisio
Anzilotti to Bodin (p. 57). As a phenomenon that might be better
explained by dualism than by monism, the immunity of states is
particularly emphasized beside the sovereignty of states in the 19th
century. This argument does not convince me completely since the
reciprocal inviolability of states before national courts is based on the coordination of the subjects of international law that might just as well be
explained by means of monism. What speaks against dualism is that state
sovereignty has eroded increasingly since Word War II. According to the
author, the development of international criminal law and objective order
phenomena such as peremptory law has proven it in particular. On the
other hand, dualists could argue in their favor that individuals have not
yet become subjects of international law, a fact that would speak against a
single legal order (p. 64). It is known that the reciprocal objections have
resulted in the fact that both theories no longer occur in pure, but in a
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moderate form, attempting to incorporate counterarguments. Thus a third
way has developed in literature, especially influenced by Gerald
Fitzmaurice, that denies the importance of the entire debate and
recommends solving problems pragmatically without taking the theories
into account.
The pair of terms of monism and dualism corresponds to the terms of
adoption and transformation. From the point of view of the monism and
dualism theories, they relate to the corresponding domestic act. While
adoption merely designates the application of international law as such,
transformation is an act that transforms the character of international law
in domestic law and exchanges the addressees of the obligations (states
against individuals and domestic authorities). The author does not
overlook that laws approving treaties and orders to apply treaties can be
interpreted from both theories. However, according to the author there
are still numbers of factors where they would lead to different results.
One of those is the official language (p. 97 et seq.) because if monism is
applied strictly the official language cannot be applied if it is not an
authentic treaty language. One could add that the methods of
interpretation of international law in general must be taken into stronger
account, including, in particular, the later treaty practice of parties and of
arbitral or other tribunals. Another differentiating factor is the importance
of challenges of their validity as they arise from constitutional objections
that are evaluated differently by the theories; this, however, is disputable.
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Further, the author dwells intensively on the question of so-called selfexecuting treaties (p. 98 et seq), i.e. treaties that are directly applicable due
to their nature. It may seem obvious to interpret them in the sense of
monism, however, it is not a cogent conclusion. The question whether
such treaties have domestic effect ultimately depends on the national
legal order. It should be noted that the case law with respect to GATT
quoted by the author could be more updated (p. 114). But the author
rightly notes that this debate does not advance a dispute. What is
interesting is the notion whether the increasing importance of democracy,
particularly in countries of the Southern Hemisphere, rather suggest a
dualist stance, as it tends to favor the engagement of parliament. The
author
also
contemplates
whether
the
phenomenon
of
constitutionalization and pluralism has put an end to the debate. The
author sees this differently because under these circumstances the states
still can and must decide upon the status of treaties, even if, admittedly,
that the freedom to accept treaties has been restricted in particular by
constitutionalization and international human rights. This issue remains
controversial. For the court practice, both tendencies to international law
and national sovereignty are possible. Therefore, the author does not
want to choose one side or the other and the results remain relatively
open.
3. The third chapter introduces the chosen legal orders with respect to
their ‘Außenstaatsrecht’ (constitutional law pertaining to international
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relations) in an overview. For every one of these states the author
describes the background of the existing constitutional rules, the
competences for the conclusion of a treaty, the underlying meaning of the
term of treaty and possible idiosyncrasies. The description of German
law is, generally speaking, correct. The part about Indonesia, that for
obvious reasons is the most detailed one, takes up much of what is stated
in chapter one. This holds true in particular with regard to the division of
the different phases. The first phase lasted from 1945 to 1960 when
treaties were concluded on the basis of the Constitution that resulted from
strong Dutch and Japanese influence. In the second period (1960 until
2000) the conclusion of treaties was regulated by a Letter of the President.
In the third period there is now a law governing international treaties.
The constitutional basis, however, has remained, with short interruptions
and minor changes, the same. What is interesting is that there was no
distinction made between the conclusion of a treaty and the ratification.
This
corresponds
to
the
heavy
weight
the
executive
of
the
‘Außenstaatsrecht’ (law pertaining to international relations) has;
however, it does not fit with the parliament clause which was introduced
later (p. 234). What is confusing is the difference in terms of terminology
stemming from Dutch law between “treaty”, on the one hand, and
“agreement”, on the other hand. This applies both in political practices
and in theory, which are satisfactorily explained. Ultimately, it remains
unclear what is meant with the phrase a treaty should be ‘governed by
international law’. What seems particularly contestable is whether that
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includes treaties under private law (p. 244). Apparently this problem
arises with respect to loan agreements. All of this results in the fact that
the internal competences have remained quite uncertain.
4. Chapter four compares the five legal orders with respect to two aspects
that are important for treaties namely the distribution of competences in
the treaty-making power and the status of international treaties in
domestic law. With regard to the treaty-making power the author
describes the different categories of treaties that require parliamentary
participation. What connects them is the fact that the parliament is only
competent for certain and more detailed treaty categories. Moreover, the
author points out in particular those legal norms that are familiar with the
engagement or competence of sub-ordered (autonomous) entities, such as
Germany (Art. 32 GG), China (Hong Kong, Macao) and, within strict
limits, Indonesia (Papua and Aceh p. 261).
The segment on the domestic status of international treaties takes up
again the debate between monism and dualism. Apparently mixed forms
occur everywhere. In China, for instance the traditional monist view has
been restricted by growing practices in the sense that certain treaties,
especially within the framework of human rights and commercial law,
require transformation. It seems obvious to assume that these are types of
treaties that may be in tension with the prevailing doctrine. (p. 283). South
Africa, like many other common law countries, is a dualist state.
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However, for self-executing treaties that allow for adoption it is adequate
according to the monist mode. The situation with regard to the German
Basic Law is correctly described, including contradictions that are
reflected in the decisions of the Federal Constitutional Court. The author
has not overlooked other interesting details such as the qualification of
ordinary law that may restrict or exclude the possibility of direct
application of international treaties. The special status of the European
Convention of Human Rights (ECHR) is correctly described. Finally in the
Netherlands, it is understood as a model of monist systems where the
courts may decide if treaties are directly applicable or not (see p. 340).
Contrastingly in Indonesia, domestic status was of no importance. Thus
the questions of implementation, the rank, the parliamentary process and
the form of the act of approval have been debated. Gradually, however,
practices have developed that result in the form of the law having the
character of an act of transformation. However, some factors of the state
practice may be interpreted in the sense of monism. With regard to the
case law as well, which is surprisingly extensive and outlined in great
detail, it has not resulted in clarity. Mostly international law only plays a
role mediated through national law. A clear statement on the relation of
both, however, cannot be made (p. 395 et seq).
5. The fifth Chapter has an analytical character and is meant to bring
together the findings of Chapter 4. First, there is a general part
establishing that there are no models that strictly keep up monism or
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dualism only. The German system is in most regards rightly described as
hybrid and ambiguous (p. 429). It seems plausible to me that both systems
play a role (p. 430), especially in South Africa and Germany. There are
other good observations made in this Chapter. It is certainly true that the
question of the domestic status of treaties has played a major role only
since World War II (p. 415), since the conclusion of treaties and the
creation of international organizations have increased in a way that is
unparalleled in history. Moreover, it is rightly observed that states which
have overcome a dictatorship tend to be more open towards international
law (p. 435) and that international law and constitutional law increasingly
penetrate each other (p.439). Additionally, the author determines three
common features in the five legal orders under review; first, that all
treaty-making power has developed in the course of time, from executive
heavy archaic privileges towards stronger parliamentary participation,
which was often resulting in a state of uncertainty with respect to the
interpretation of the participation of parliament, as it is unclear whether
this primarily serves controlling the executive or legislative purposes (p.
430). Second, in all legal orders under review, not all but only certain
treaties require the approval of parliament. Here the German model that
describes categories very abstractly differs from the other legal orders
because other legal orders designate treaties that require approval
according to the content they regulate. In every case, however, it seems to
be of importance that legislative competences should not be wrongfully
restricted by the competence of the government to conclude treaties.
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Third, the author concludes that the involvement of subordinate entities is
rather a historic phenomenon, as for instance in Germany and China and
that it does not occur necessarily in a systematic manner in federal states,
as can be seen in the case of South Africa.
The following part that deals with the models of treaty validity takes up
again the never-ending monism-dualism debate. The points that matter in
this respect are, according to the author, the relation between the date of
the entry into force of treaties and direct applicability. With regard to the
rank within the domestic pyramid of norms, monism tends to rank them
high, as can be seen in the case of the Netherlands (p. 462). However, one
might use the example of the US as a counterargument as they are
understood as a monist system in general, but do not accord treaties a
clear, or at least not necessarily a high, rank. In its closing, the author
concludes that the problem of self-executing treaties is not necessarily
correlating to this issue; the different approaches do not indicate a clear
concept (463). In the end stands a conclusion that has not found a clear
attitude with respect to a number of issues raised for China and
Indonesia. This is true even for the status of human rights (p. 468).
6. Chapter six infers from the previous five chapters for future Indonesian
treaty practice:
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The text of the constitution is outdated, ambiguous and
inadequate with respect to the problems that occur. It is particularly
unclear with respect to the function of the law approving treaties,
resulting in controversy (p.475 et seq).
-
Neither Dualism nor Monism alone offer satisfying solutions.
According to the author, Indonesia should follow the example of other
countries and ensure a gradual process of change on the basis of the
existing order.
-
The dichotomy of both function of the act of approval between
control and legislation should be brought to an end. The criteria of both,
that is particularly the regulation concerning the approval of treaties and
the legislative process intended by constitutional law should be adapted
to each other. Moreover it must be clarified to which treaties these new
coherent procedures should apply. According to this, the competence of
the constitutional organs should be determined when it is a (state) treaty
and when it is an (administrative) agreement. Parliament should have the
right to step in into the procedure by its own initiative.
-
The recommended generic approach favors a careful continuation
of the monist tradition stemming from Dutch law that has the advantage
of being international law friendly. On the other hand dualism might be
more democratic, because with the requirement of an act of
transformation, in most cases a statute, it justifies the competences of
parliament. The middle way would be Vollzugs theory (p. 485). Further,
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the question of the entry into force of a treaty and its connection with the
law approving a treaty could be clarified on this basis.
-
The rank of the treaty should follow the act introducing it in
domestic law. However, it should not, as sometimes discussed, form an
independent category. The Indonesian Constitutional Court should have
the competence to examine if laws approving treaties are in conformity
with international law.
III
The Author has submitted a well founded study using a lot of material, in
which he describes the character of the legal orders under review – at
least the German one - very adequately and nuanced, considering he is a
jurist who has not grown up in this system. Despite the fact that the
dichotomy between monism and dualism is overemphasized, in my
opinion, the author has succeeded in extracting criteria that structure the
depiction. Parts of the thesis are excessively detailed and there are some
redundancies. However, the author has reached a number of a very
interesting and remarkable theories and results. One of these is the
correlation between the affirmations of a constitutional order of a
particular system with regard to the domestic status of international
treaties with the respective arrangement of the balance of powers. The
author has demonstrated so with respect to Indonesia, South Africa and,
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with reservations, for China as well. The historical example from which
this idea is deducted is the antagonism between crown and parliament in
Great Britain that has led to a specific form of dualism. Another
interesting factor is the tension between both parliamentary functions of
the legislation and the control that is reflected in the law of approval and
which in some constitutional orders requires a resolution. The final
conclusions drawn with respect to Indonesia seem modest. However, it
must be granted that a proposal aiming at influencing political practices
must not lose sight of what is feasible.
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