Pustaka Ilmiah Universitas Padjadjaran

Abstrak

Status Perjanjian Internasional dalam Sistem Hukum Indonesia Berdasarkan Politik Luar Negeri dan Pasal 11 UUD 1945

Inconsistency about status of treaties in domestic legal system is a problem that need to be solved by Indonesian Government. Article 11 of the Constitution of Indonesian Republic, 1945 (UUD 1945) not regulates internal treaties ratification mechanism at all. Thus, there is no suitable constitutional norm for solving that problem of inconsistency. The main objective of this research is to understand and to describe an interrelation connection between domestic law and international law (especially treaties) in Indonesia. In addition, this study aims to understand and describe the foreign policy of Indonesia as a factor that determines the status of treaties in Indonesian legal system. Furthermore, this study can describe the position of treaties in the Indonesian legal system that conform with the development of the international community without prejudice to national interests of Indonesia. The nature of this research is “descriptive-analytical” which mean that author uses secondary data and primary data to describe existing facts, using primary, secondary, and tertiary legal materials. “Normative juridical” or also known as literature study, is approaching method that author uses combined with grammatical, authentic and teleological interpretation of the law. Then author uses qualitative jurical analysis to explain the results of this research. The pattern of interaction between international law and national laws of Indonesia show that Indonesia cannot be categorized as implementing monism or dualism doctrine. Indonesian government and society need a common understanding about interaction between national law and international law as an unified system. International law become a component in that system, as well as national law. Both influence each other. Foreign policy became an influencing factor to the constitutional norm that regulate status of treaties in Indonesian domestic legal system. Thus, primacy of national law monism doctrine can describe the free and active foreign policy of Indonesia. In order to create legal certainty, Article 11 UUD 1945 should be “sui generis” regulate the status of international law in the national legal system of Indonesia. Constitutional amendment in the formulation of Article 11 UUD 1945 is absolutely necessary.