Treaties before Indonesian Courts

THE COURTS AND TREATIES: INDONESIA’S PERSPECTIVE

Damos Dumoli Agusman1

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Are Indonesian Courts bound by a treaty to whichIndonesia is a party? Are its judges free to applyinternational rules? These simple questions areunfortunately encountered with legal difficulties.Although Indonesia inherits the monist-tradition of theDutch colonial power (the tradition of which all bindingtreaties are always domestically applicable before thecourts), the question of enforceability of treaties isstill open under the current Indonesian legal system,which is far from certain. Neither constitutionalprovisions nor legal doctrine is yet satisfactory indealing with this compelling question. Scholarly viewsare also divided on this particular issue and have tosome extent added to the legislative ambiguities,inconsistent government practices, and unpredictabilityin the Court decisions.2

It has been traditionally argued that domesticcourts find obstacles in the way of direct application of

1 Graduated from Law Faculty, University of Padjajaran, Bandung;Master Degree on International Law and Politics, University of Hull,England; Former Director for Treaties, Foreign Ministry; CurrentlyConsul General of Indonesia in Frankfurt and Phd Candidate atUniversity of Frankfurt. The view in this paper is not necessarilyreflecting the Government view.2 Agusman, Damos Dumoli, Hukum Perjanjian Internasional, Kajian Teori dan Praktik diIndonesia (Law of Treaties, Theories and Practice in Indonesia),Bandung: Refika Aditama, 2010, 95-143.

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international law because of the notions of statesovereignty, separation of powers and the principle oflegality3 under dualist pretext over the relationshipbetween international law and domestic law. Nevertheless,using international law in domestic courts under modernlegal jurisdiction has widely been accepted. Even inthat dualist legal system, where international law isrelatively isolated from domestic law, the use ofinternational in deciding the case, albeit in variousmodes, has been a common practice.4

Constitution of 1945 as recently amended includingexisting legislations, state practices, as well as legaldoctrines, are still silent on the question whether ornot international law may be directly invoked andenforceable under domestic legal system. Therefore thispaper attempts to explore whether the answer to thequestion is there and available in Indonesian judicialattitudes. How and to what extent Indonesian Courts makeuse of international law especially treaties in decidingcases before it would be the central focus with a view offinding the general trend, if any, with regard tomentioned-above question.

1. Courts and the Judicial Competence

On the basis of the Rechtsstaat principle, judicial powersare set up distinct from other state powers. Article 24 Aof the 1945 Constitution of the Republic of Indonesiarules that the judicial powers shall be independent with3 Ferdinandusse, Ward, Direct Application of International Criminal Law in NationalCourts, Assers (2006), 221-268.4 Under dualist legal system, international law should be transformedinto domestic law in order to be available before the Courts.Nevertheless, some juridical techniques have developed so that theCourts may apply international law as if international law wasdirectly applicable, see Fatimah, Shaheed, Using International Law inDomestic Courts, Oxford (2005).

AGUSMAN, DAMOS: THE COURTS AND TREATIES: INDONESIA’PERSPECTIVE2

the authority to organize the judicature in order touphold law and justice. Under the present Constitution,the judicial powers are vested in two distinct courts andone commission:

(a) The Supreme Court with its subordinate judicatorybodies dealing with general, religious, military, stateadministrative judicial fields. It has the judicialpowers to hear a trial, review legislation lower thanlaws against such laws, and other powers prescribed bylaws.5

(b) The Constitutional Court has the judicial powers toreview the constitutionality of laws against theConstitution; it settles disputes concerningconstitutional competences of state’s organs, dealswith cases concerning the closure of political parties,settles disputes arising from general election, andmakes a decision on the opinion of the House ofRepresentatives for the impeachment of the President.6

(c) The Judicial Commission whose tasks are to electJudges at the Supreme Court and to monitor the conductsof the Judges under the Supreme Court.

It is just recently that the courts are becomingindependent as well as impartial. The present independentand impartial status of judicial institutions is alsoencouraged by a strong public call following thepolitical reform since 1998. Before the reform, asenvisaged by the previous Law No. 14 of 1970 on Justice,the courts were under administrative control of theMinistry of Justice (executive) thus leading to the so-called ‘two hat’ controversy7 whereby judges had two5 Article 24 (a) Constitution of 1945 (as amended in 2002).6 Article 24 (c) Constitution of 1945 (as amended in 2002).7 Timothy Lindsey, ‘Indonesia, Reinventing a Legal System, Too Much,Too Little, Too Late’, in Alice Tay (ed.), East Asia, Human Rights, Nation-Building, Trade (1999), 519.


authorities they had to answer to, i.e. to the Ministerof Justice for administrative matters and to the SupremeCourt for substantive matters. This created doubts ontheir independence and impartiality. Following theconstitutional reform in 2000, as affected by the Law No.48 of 2009 on Judicial Powers, the Supreme Court and thenewly set-up Constitutional Court in 2004 have becomeindependent judicial institutions and take care of theirown organization, administrative matters as well asbudget.

The Law No. 48 of 2009 on Judicial Powers has providedseveral judicial principles to be subscribed byIndonesian judges which are related to the function ofthe courts and the possible access to international lawespecially treaties. They are, inter alia, as follows:

(a) Trials by the courts shall be on the basis of lawswithout any discrimination.8

(b) Judges shall explore, follow and understand thelegal values and sense of justice living in thesociety.9

(c) Judges in making decisions shall convey legalconsiderations and written opinions.10

(d) The decisions of the courts shall embody legalreasoning and legal basis; and shall quote therein therelevant provisions of the laws or the unwritten lawsthat are invoked for the decisions.11

From those judicial principles, it might be inducedthat judges shall be independent as well as subject tolaw. In delivering their judgments they are bound by laws

8 Article 4 (1) Law of No. 48 of 2009 on Judicial Powers.9 Article 5 (1) Law of No. 48 of 2009 on Judicial Powers.10 Article 14 (2) Law of No. 48 of 2009 on Judicial Powers.11 Article 50 (1) Law of No. 48 of 2009 on Judicial Powers.


and are given the freedom to seek and explore all legalnorms applicable to the cases under examination. It alsoappears from the existing law that the Indonesian courtsdo not encounter (or at least the law does not mentionit) the typical judicial problem of so-called ‘threats tothe independence of courts’,12 such as the principle ofnon-justifiability, which (i) prevents them frominterfering with foreign policy making by the executive;(ii) prevents them from examining whether the executiveacts in accordance with treaties, and the doctrine thatthe states should speak with one voice; and (iii) frominterpreting treaties - because that is a matter for theexecutive rather than for the courts (separating powerconstraints13). In this regard, nothing under the lawprevents judges from applying legal norms contained intreaties in the cases under their examination as long asthey are international obligations binding Indonesia.

As Indonesia is rooted in the civil law tradition, andapparently prefers to remain in that tradition, thecourts are not bound by the previous decisions of thecourts (precedence). However, consideration to thecourts’ decisions are very significant to be paid for, asit can explains how the norms are operating and appliedin a concrete case.

2. Judicial Attitude towards Treaties

a) Introductory remarks

Cases arising directly from the question of thedomestic status of treaties in Indonesia are still rare,partly because the domestic law relating to treaties is12 Nollkaemper, André, National Courts and the International Rule ofLaw, New York: Oxford University Press (2011), 49-53.13 Haljan, David, Separating Powers: International Law before National Courts,Springer (2013), 100-109.


not yet well developed and there was little legalinterest in the Indonesian legal system to have itdeveloped. Consequently, the courts have not yet beenenthusiastic to express their perception towards thedomestic status of treaties and therefore have hardlyindicated any direction and trend with regard to thequestion. Furthermore, as in most civil law countries,the legal opinions as contained in the Indonesian court’sdecisions are mostly short and formal in nature becausethe judges are not obliged to provide an elaboratedreasoning for the decisions. In most cases examined, mostarguments relevant to the issue of treaties underdomestic law have been elaborated by the parties to thedispute. The responses of the courts are, however,usually less elaborate. Their rulings are relativelyshort and tend to go straight forward to the decisionwithout making necessary consideration (ratio decidendi) tothe arguments submitted by the parties. It is thereforedifficult to imply legal determination simply from theirdecisions only.

From the various interviews with the Indonesian judgesand legal practitioners, a small group of judges haveheld an approach that treaties have been transformed intodomestic law by virtue of the laws approving the treatiesand will treat them as binding laws.14 No trend in thecase law however convincingly supports this approach.Most judges apparently show indifference towardstreaties. The acknowledgement in the legal theory astaught in Indonesia, that treaties are sources of law,apparently does not have any effect to the manner thecourts treat and give weight to treaties. According tothe prevailing law, treaties are still outside the

14 Hadhyono, Suparti. Praktek Penerapan Perjanjian Internasional dalamPutusan Hakim (Treaties under National Court). Focus Group Discussion, Ministry of ForeignAffairs of Republic of Indonesia-Law Faculty of University AirlanggaSurabaya (2008).


recognized sources of law in Indonesia and are hardlyacknowledged as what the theory dictates. Even to thejudges that have good knowledge of international law,treaties are not more important than the laws.15 Anothergroup of judges recognize the binding force of treatiesbut in the same vein their application is contingent tothe implementing legislations, and will only refer to thetreaty provisions if the domestic legislations are notsufficiently clear. 16

However, there are recently a growing number of courtdecisions that touch upon and make either direct orindirect reference to treaties. Jurisprudence makingreference to treaties is in most cases closely related toglobalization related treaties, such as trade and humanrights. The Supreme Courts and the Constitutional Courtshave recently used provisions of treaties for variouspurposes, ranging from merely supporting their legalarguments, seeking clarification for interpreting unclearlegal principles and provisions, to more authoritativeone by invoking them as legal norms. Treaties to whichIndonesia is bound have been invoked in most cases beforethe courts not only as a tool of interpretation fordomestic legislation but also for their application tothe particular cases. Likewise, the respective party tothe case has also attempted to explore and developarguments on the basis of the provisions of treaties andmade necessary references to all resources availablewithin the province of international law.

The establishment of the Constitutional Court hascontributed to a growing number of cases relating tointernational law because it deals mostly with thejudicial review of statutes/laws against human rights

15 Interview with Judge Nameandriani Nurdin, Chief of District Courtof Central Jakarta, 7 May 2011 (unpublished, on file with author).16 Inteview with Supreme Court Justice, Professor Mieke KomarKantaatmadja, 28 February 2011 (unpublished, on file with author).


provisions of the Constitution in which many relevanttreaties are closely involved. Although theConstitutional Court does not directly deal with theconflict between the provisions of domestic laws andtreaties, it seeks reference from treaties as aids tointerpretation to ensure that the constitutionality ofthe law shall also conform to international law. TheCourt therefore interprets laws before it in the mannerthat they are not in conflict with the rule ofinternational law.

To date no case has been reported concerning claims inwhole or in part based directly and independently on theprovisions of treaties, or reviewing the legality ofnational acts in the light of treaty obligations orconcerning interpretation and application of treatyrules. The Supreme Court as well as the ConstitutionalCourt at the present stage generally apply provisions ofa treaty in the context of, and connected with, theapplication of domestic provisions. They normally usetreaties as tools of interpretation to the issue arisingfrom the provisions of domestic legislations. Themainstream approach still puts emphasis on domesticprovisions and will refer only to treaties if thedomestic law is not clear with regard to the given caseor an additional clarification is still required toclarify a vague domestic legal concept.

b) Survey of Judicial Practice

(i) Guiding Principle in the Constitutional Court(Mahkamah Konstitusi)

The Constitutional Court has established a guidingprinciple underlying the use of international law indeciding a case. In a case concerning judicial review of


the blasphemy law involving religious freedom, theConstitutional Court holds that the compliance ofIndonesia to international law including treaties ischaracterized by, and shall be in accordance with, thephilosophy of the state as well as the Constitution.17 Itimpliedly suggests that the Constitution is supreme tointernational law.

(ii) Treaty Rules applied as authoritative

There is a number of cases that are directly concernedwith the application of the provisions of a treaty to adispute. The Supreme Court, which mostly deals withprivate cases, encountered cases relating to intellectualproperty rights, for which appropriate treaties arerelevant. In its decisions in 1990 the Court invokedinternational obligations of Indonesia arising from theParis Convention for the Protection of IndustrialProperty of 1883 to which Indonesia is a party.18 TheCourt made a ruling by applying the provisions of theConvention. In a number of similar cases, the SupremeCourt has applied the provisions of treaties particularlyconcerning the protection of so-called well-knowntrademarks as stipulated in the Paris Convention and theAgreement on Trade Related Aspects of IntellectualProperty Rights, Including Trade in Counterfeit Goods(TRIPS) to which Indonesia is a party. In a trademarkdispute,19 where the Court was requested by a party toannul a registration of a well-known trademark by anotherparty, the Supreme Court applied Article 6 bis of the ParisConvention for the Protection of Industrial Propertywhich led to a decision in favour of the requestingparty. 17 MK, case No. 140/PUU-VII/2009, 275.18 Supreme Court Cases on Knirps (1991), Gucci (1992), Giordano(1994), see Sudargo Gautama and Rizawanto Winata, Pembaharuan HukumMerk Indonesia: dalam Rangka WTO, TRIPS (Reform of Trademark Laws inIndonesia with Respect to WTO, TRIPS) (1997), 372.19 MA, Subway case, No. 736 K/Pdt.Sus/2009, 12-13.


As an archipelagic state comprising a huge economicexclusive zone, Indonesia encounters an increasing numberof cases on illegal fishing in the zone. The cases beforethe courts mostly involve the relevant provisions of theUNCLOS 1982 which are applicable in the zone. In a numberof cases, the Supreme Court cites Article 73 (3) of theUNCLOS 1982 concerning the prohibition of imprisonmentfor the violations of fisheries law in the zone.

In Yu Yuen Jun20 and Lao Chong21, decided respectively in 2007and 2009, albeit contended by the defendant on the basisof Article 73 (3) of the UNCLOS 1982, the Supreme Courtignored the prohibition contained in the Convention andkept imposing imprisonment without any legalclarification why the Court was not bound by the treatyprovision. The compliance to the provision has beenincreasingly held in the subsequent cases. In the Bui NgocSanh case decided recently in 2012, a captain of aVietnamese fishing ship was arrested on the allegation ofillegal fishing within the economic exclusive economiczone of Indonesia in Natuna Sea. The Court of firstinstance (District Court) endorsed a punishment with 6month in jail. The defendant brought the case to theHigher Court by invoking Article 73 (3) of the UNCLOS1982. The Higher Court then held:

According to Article 73 (3) of the UNCLOS 1982 or Article 73 (3) the Law No.17 of 1985, it is prohibited to impose imprisonment for violations offisheries law in the exclusive economic zone…therefore the Judgment of theCourt in the first instance should be corrected to the extent of the penaltiesimposed to the defendant… 22

The Compliance to the provision of the UNCLOS in asimilar case in 2012 continues to be held, where fineswere imposed to the defendant without involving

20 MA, Yu Yuen Jun, No. 893 K/Pid/2007.21 MA, Lao Chong, No. 1596 K/Pid.Sus/2009.22 PT Pekanbaru, Bui Ngoc Sanh, No. 66/Pid-Sus/2012/PTR, 7.


imprisonment by making reference to the provision of theConvention. 23

Apart from cases concerning violations of fishing lawin the economic exclusive zone, there was also a casearising from the application of provisions of the UNCLOS1982 concerning the right of innocent passage interritorial sea. In the Chen Guo Ping case, a captain of aChinese fishing ship who was accused of illegal fishingin the territorial sea of Indonesia in the Aru sea, wasreleased by the District Court in Timika on the accountthat there was no evidence to prove that the defendantwas only exercising innocent passage and nor prove thatthe defendant violated the fishing law. In the appealproceeding, the prosecutor built up arguments invokingthe relevant provisions of the UNCLOS 1982 and arguing:

The Court of first instance has wrongly understood the meaning ofinnocent passage. It should have considered other relevant rulespertaining to the issue and in this regard what it should mean according tothe UNCLOS 1982 which has been ratified by the Law No. 17 of 1985 andthe Law No. 6 of 1996 concerning Indonesian Waters. One of the activitiesthat is prohibited by Article 19 (2) the Law No. 17 of 1985 concerningRatification of the UNCLOS 1982 is fishing. According to the Convention,ships while exercising innocent passage shall stow their fishing gear andequipment. It is evidenced from the witnesses that upon the arrest the

23 PT Pontianak, Le Van Thong, No. 104/Pid.Sus/2012/PT.PTK, 11; PTPontianak, Nguyen Van BE, No. 195/PID.SUS/2012/ PT. PTK, 11/. However,in a similar case, the Higher Court of Pekanbaru while acknowledgingthe prohibition of imposing inprisonment has pronounced that a sortof short detention (pidana kurungan) may also be applied. The Courtargued that accroding to the classification under article 10 ofIndonesian Criminal Code (KUHP), pidana kurungan is another kind ofpenalties and is not pidana penjara (‘inprisonment”) meanwhile theprohibition envisaged by the Fisheries Law confines only to pidanapenjara. It appears that the Court has interpreted the Criminal Codein a manner so that the outcome would be incompatible with thearticle 73 (3) of the UNCLOS because pidana kurungan is also a form ofcorporal punishment, which is prohibited by the Convention, se PTPekanbaru, Tran Huu Tuyen, No. 52/PID.SUS/2012/PTR.


fishing gear and equipment were not stowed, and one ton of fishes werefound in the vessel.24

Unfortunately the Supreme Court did not reach themerits of the case where it could otherwise pronouncesome ruling concerning the meaning of innocent passageunder the Convention because it rejected the appeal onthe ground of procedural constraint, under which theprosecutor could not bring the case for appeal because inthe Court of first instance, the defendant wasunconditionally released from the charge. Under theprocedural law, the Supreme Court could only accept theappeal if the judgment of the Court of first instancedoes not amount to unconditional release. Had the Courtof first instance released him under specific conditions,the Supreme Court should have dealt with the merits ofthe case.

The Court of first instance in Jayapura gave due regardto treaties in general in a case concerning theimprisonment of a 15 year old child that committed acrime. The Prosecutor charged the child for criminaloffence and asked the Court to impose imprisonment. TheCourt held that:

In deciding the sentence, the Court should take into considerationinternational conventions concerning the rights of child as well as the lawsconcerning child protection. In this regard, taking into account that thedefendant is still teenager and attending junior school, especially havingdue regard that prison devoted for children is not yet available in thisregion, the imprisonment sentence will negatively affect the physiologicaldevelopment and the future of the defendant…. The Court therefore, whilefinding that the defendant is guilty, decides to return the defendant to hisparent.25

24 MA, Chen Guo Ping, No. 232 K/Pid.Sus/2007, 5-7.25 PN of Jayapura (Court of first instance Jayapura), Yanuar Kayoan Umafcase, No. 65/Pida.B/2012/PN-JPR.


The Supreme Court directly applied the ViennaConvention on Diplomatic Relations to cases involving andaffecting foreign embassies. In two separated casesconcerning the land title of the diplomatic premises usedby the Embassy of Saudi Arabia26 and Malaysia27, privatepersons brought claims that the lands used by the twoembassies belonged to them and asked the Court to annulthe land certificates that had been issued by theGovernment for these embassies. In the two cases, theSupreme Courts rejected the claim of the applicant on theground of diplomatic immunity and inviolability ofdiplomatic premises as stipulated in Articles 29 and 30of the Vienna Convention on Diplomatic Relations 1961.

Although the judgments are not free from criticism on adifferent ground,28 the Supreme Court appears to applydirectly the provisions of the Convention withoutnecessarily having examined whether or not there existsdomestic legislation that give domestic effect to theConvention. Until today, Indonesia has no domestic law orregulation concerning diplomatic immunities apart fromLaw No. 1 of 198229 approving/ratifying the ViennaConvention and has granted such immunities on the basisof that Convention.

26 MA, Arabic Saudi case, Fatwa No. WKMA/Yud/04/2006.27 MA, Malaysia Embassy case, No. 111K/TUN/2000.28 It has been argued that the Court should have distinguished betweenthe question on land title, which pertains land law, and theenjoyment of diplomatic immunity. The question whether or not anembassy acquires a good title to land is exclusively determined byland law and has nothing to do with, and shall be distinguished from,the question of diplomatic inviolability. The good title to land ofan embassy must be presumed as enjoying diplomatic inviolability, seeAgusman, Damos Dumoli. Hukum Perjanjian Internasional, Kajian Teoridan Praktik di Indonesia (Law of Treaties, Theories and Practice inIndonesia). Bandung: Refika Aditama (2010), 6. 29 Law No. 1 of 1982 concerning Vienna Convention on the DiplomaticRelations and Vienna Convention on Consular Relations, 25 April 1982,LN (Official State Gazette No. 2/1982).


The question of self-executing provisions of a treatyhas been raised in a number of cases. In a caseconcerning intellectual property rights, 30 the requestingparties asked the Supreme Court to apply the ParisConvention by arguing that the Convention in this regardis self-executing. Although the Court decided in favourof the requesting party by which the outcome of thedecision confirmed such protection on the basis of awell-known trademark, it failed to address the questionwhether the Convention itself is self-executing. Thedecision of the Court was made merely on the technicalground that the Court of first instance has made a wrongmeasure in the proceeding by rejecting the copy ofevidences, a legitimate proof before the Court, althoughit had been properly legalized. The Court did notconsider it necessary to address questions such aswhether it is bound to apply treaties ratified byIndonesia nor has it determined whether the ParisConvention is self-executing.

In the recent case concerning the constitutionality ofthe ASEAN Charter, the Constitutional Court identifiesthat Article 1 (5) of the Charter, which establishes anASEAN free trade area and which is claimed by theapplicants as violating the Constitution, could not beautomatically effective31 because the next paragraph ofthe Article (Article 1 (6)) stipulates that: Member Statesshall take all necessary measures, including the enactment of appropriatedomestic legislation, to effectively implement the provisions of this Charterand to comply with all obligations of membership. It may be impliedfrom this particular decision that a treaty norm is non-self executing if the wording of the norm so indicates.It is to confirm that the Court does not invoke a dualistpretext to deny the self-executing nature of a treatynorm.30 MA, Lexus case, No. 194 K/Pdt.Sus/2011, 6-14.31 MK, No. 33/PUU-IX/2011, Judicial Review of Law No. 38 of 2008concerning ASEAN Charter, 189.


On the other hand, the Supreme Court has also applied aprovision which is clearly non-self-executing by virtueof its merits. In a case concerning industrial design32

where the Supreme Court was requested to revoke theregistration of an industrial design on the ground thatthe design was not new, a provision of the TRIPSAgreement that is clearly non-self executing33 wasapparently invoked. It held that:

According to Article 2 (2) of the Law No. 31 of 2000, Industrial Designs areregarded new when on the date of registration it was not similar to onesthat existed before. According to Article 25 (1) of the Agreement on TradeRelated Aspects of Intellectual Property Rights, Including Trade inCounterfeit Goods designs are not new or original if they do notsignificantly differ from known designs or combinations of known designfeatures.

Contrary to the cases above, in some exceptional casesthe Supreme Court has denied the application of a treatyto which Indonesia is a party. The Court of firstinstance in the Apriliany Case34 concerning the liability ofair carriers for luggage lost, which was eventuallyconfirmed by the Supreme Court, declined to apply theprovisions on liability of the Warsaw Convention 1929 forthe Unification of Certain Rules Relating toInternational Carriage by Air on the account that theapplication of the provisions of the Convention to thisparticular case would create unfairness in Indonesia. TheCourt, while acknowledging the provisions of the

32 MK, Industrial Design case, case No. 022 K/N/HaKI/2006, 20.33 Article 25 (1) TRIP’s Agreements states that Members may providethat designs are not new or original if they do not significantlydiffer from known designs or combinations of known design features.Members may provide that such protection shall not extend to designsdictated essentially by technical or functional considerations. Bythe wordings of the provision is clearly non-self-executing becauseit only recommends member states to provide that designs are not newor original by which domestic legislation for that effect isinevitably necessary.34 MA, Apriliany case No. 970 K/P-dt/2002, 13.


Convention as applicable rules to the case, preferred toapply domestic rules in order to obtain a more fairoutcome.

The case of PT. Nizwar v. Navigation Maritime Bulgare (NMB) in1981 is a controversial landmark case, which involvesdirectly a question of domestic status of a treaty, i.e.the New York Convention on the Recognition andEnforcement of Foreign Arbitral Awards 1958, which theSupreme Court declined to directly apply. The caseconcerned the enforcement of foreign arbitral award inIndonesia where NMB, the winning party, attempted to seekits execution under Indonesian jurisdiction. The Court offirst instance on 10 June 1981 granted the request forthe enforcement of the arbitral award on the ground thatIndonesia was bound by the Geneva Convention on theExecution of Foreign Arbitral Awards of 1927 by virtue ofstate succession principle from Dutch colony.35 TheSupreme Court overruled the decision of the Court offirst instance and rejected the assertion that Indonesiawas bound by the Geneva Convention of 1927 by holdingthat in principle and according to Indonesianjurisprudence foreign court judgments cannot be enforcedin Indonesia unless there is agreement between Indonesiaand the foreign state concerning the enforcement offoreign judgments. The Court further rejected the statesuccession principle by arguing that despite Indonesiabeing bound by the state succession agreement by virtueof Article 5 of the ‘Round Table Agreement 1949’ betweenIndonesia and the Netherlands, this did not necessarilymean that Indonesia is bound by treaties to which theNetherlands was a party. The reason invoked by the Court35 The succession arrangements were agreed upon under Article 5 of the‘Round Table Agreement’ 1949 between Indonesia and the Netherlands,under which all rights and obligations to the Netherlands arisingfrom treaties to which it was a party continue to be applicable toIndonesia, see Ko, Swan Sik. The Indonesian Law and Treaties 1945-1990. Dordrecht, Boston, Norwell: Kluwer Academic Publishers (1994),20.


was that the treaty was concluded when the world wasdominated by colonial powers and therefore the statesuccession principle was a product of the situation.Apart from these rulings, the Supreme Court also endorsedits views concerning the New York Convention on theRecognition and Enforcement of Foreign Arbitral Awards1958, which was ratified by Indonesia by means ofPresidential Decree No. 40 of 1981 on 5 August 1981 whenthe Court examined the case. The Court, however, deemedit necessary to express it in order to render certaintytowards the New York Convention. The Court held that:

The denial to the request for the recognition of enforcement of foreignarbitral award is due to the fact that the implementing legislationconcerning foreign arbitral award is not yet enacted. Therefore, theSupreme Court should wait for the enactment of the implementinglegislation in order to recognize and enforce the foreign arbitral award.36

The Supreme Court judgment on this case immediatelyinvited criticism from various scholars. Some scholarsindicated that the Court attitude towards the New YorkConvention reflects the dualist approach.37 The prominentscholar on private international law, Sudargo Gautama,argued, inter alia, that implementing legislation is notnecessary because the fact that Indonesia is bound by theConvention by the enactment of Presidential Decree No. 40of 1981 sufficed to provide legal basis for theenforcement. In this regard he further argued that thePresidential Decree ratifying the Convention renders itself-enforcement effect.38 T.M. Radhie tried to explain

36 MA, PT. Nizwar v. Navigation Maritime Bulgare; The overview concerning thecase may be found in Noah Rubins, ‘The Enforcement and Annulment ofInternational Arbitration Awards in Indonesia’, 20 American UniversityInternational Law Review (2005) 2, 359-401.37 Fifi Junita, ‘Experience of Practical Problems of Foreign ArbitralAwards Enforcement in Indonesia’, 5 MqJBL (2008), 384-385.38 Gautama, Sudargo. Hukum Dagang dan Arbitrase Internasional (TradeLaw and International Arbitration). Bandung: Citra Aditya Bakti(1991), 2.


the Court’s rejection on the basis of the non-self-executing nature of the Convention but finally he foundthe Convention was self-executing.39 The scholarly debateon the self-executing status of this question was notproperly developed and unfortunately acquired no furtherresponse from other scholars. The controversy over thestatus of the Convention was resolved after the SupremeCourt endorsed the Supreme Court’s Regulation No. 1 of1990, which laid down administrative procedures on howthe foreign arbitral award was enforced by the Court. Itprescribed that the exequatur was required from theSupreme Court for the foreign arbitral award to beenforced and it might be requested through the DistrictCourt in Central Jakarta. Since then, the debate on thisparticular issue in light of monist-dualist perspectiveis fading away.

The legal reasoning of the Supreme Court did notproperly address the question why it still requiredimplementing regulations. It was not clear whether theimplementing regulations was required in order to makethe Convention become part of Indonesian law (question ofdomestic validity of the Convention) or just to enablethe provision of the Convention executable (question ofnon-self executing provisions). However, in the preambleparagraph of the regulation it was stated that theexisting procedural law was still absent concerningexecution of foreign arbitral awards. The fact that themerely administrative procedure could enable theConvention to be domestically enforced suggests that theproblem underlying the non-enforceability of Conventionat that time was merely the lack of administrativeprocedures as required by Article III of the Convention.40

39 Radhie, T.M. Konvensi New York tentang Pengakuan PelaksanaanPutusan Arbitrase Luar Negeri (New York Convention on Enforcement ofForeign Arbitral Awards). Working paper delivered at DisputeResolution through Arbitration Seminar, Jakarta (1990), 24.40 Article III New York Convention on the Recognition and Enforcement


If it is the case, it became closely related to thedoctrinal problem associated with the controversy ofself-executing or non-self-executing question debated inthe United States and the states of the European Union.It might be presumed that the Supreme Court did notactually deny the domestic validity of the Convention byvirtue of Presidential Decree but simply could notexecute the foreign awards because of the lack ofprocedural rules. In terms of legislation, the SupremeCourt’s regulations are hardly carrying legislativeweight and therefore could not be regarded as givingeffect to transformation/adoption of the Convention intodomestic law.

The suggestion that the Supreme Court does actually notdeny the domestic validity of the New York Conventionfinds clearer expression in a number of cases41 involvingthe Convention concerning the request for the annulmentof the arbitration award. In the recent case, the SupremeCourt applied directly the provision of the Conventionconcerning the annulment of foreign arbitral awards, bystating:

The New York Convention of 1958, which has been ratified by thePresidential Decree No. 34 of 1981 and therefore has become the norm ofnational law, has stipulated that the annulment of the arbitral awards mayonly be done in the state or according to the law where the award wasgranted.42

In a number of cases the courts have encounteredquestions concerning the application of treaties to theof Foreign Arbitral Awards 1958: ‘Each Contracting State shallrecognize arbitral awards as binding and enforce them in accordancewith the rules of procedure of the territory where the award isrelied upon, under the conditions laid down in the followingarticles.’41 PN of Jakarta (Court of Jakarta District), Karaha Bodas vs Pertaminacase No. 86/PDT.G/2002/PN.JKT.PST, 21-22; MA, PT Raya Nusantara v. PT JambiResources Ltd, 64 K/Pdt.Sus/2010, 43.42 MA, PT Raya Nusantara v. PT Jambi Resources Ltd, 64 K/Pdt.Sus/2010, 43.


given cases to which they have not delivered clearjudgments. The parties to the various disputes haveattempted to raise important legal arguments which havegiven the courts the opportunity to reveal their attitudetowards the status of treaties under Indonesian law.Unfortunately, the courts have not yet used theopportunity for making any ruling in this regard.Instead, the courts have commonly escaped from addressingthe question by invoking procedural matters. In the caseconcerning religious freedom mentioned above, theindependent expert from the requesting party asked theConstitutional Court to make a ruling that theConstitution shall be adjusted if it is in conflict withtreaties. The Court, however, declined to make such aruling by arguing that the power to amend theConstitution is vested in the People’s ConsultativeAssembly. The Court argued that it was only empowered toreview the laws against the Constitution and notauthorized to review the Constitution.43

In a case concerning judicial review of the status ofCircular Letter of the Cabinet of 1967, which stipulatesthe changing terminology used for China, from the word‘Tionghoa’ to be ‘Cina’, the requesting party asked theCourt to hold that the Letter violated the Law No. 29 of1999 approving/ratifying the International Convention onthe Elimination of all Forms of Racial Discrimination.The Court, however, declined to make a ruling on thisquestion on the procedural ground by arguing that thetime limit for the application of such judicial reviewhad elapsed because the prevailing rule of procedure ofthe Court prescribes that the date line for a law to besubmitted for judicial review shall be not longer than180 days from the date of its issuance.44

43 MK, case No. 140/PUU-VII/2009, 275, 293.44 MA, Circular Letter of the Cabinet 1967, case No. 42 P/HUM/TH. 2006.


The Supreme Court has also been silent on the publiccontroversy involving the question of the application oftreaties. The question on the legality of using one ofthe accused as a ‘crown witnesses’ against anotheraccused under the same criminal charge was one of theissues in public debate45 which has been brought to theCourt as violating the provision of the ICCPR. Albeit notexpressly prohibited under the current criminal procedurecode, the practice of examining crown witnesses has beenallowed by the Supreme Court and received severecriticism because it amounted to self-incriminationwhereby the unfortunate situation compels a person totestify against himself or to confess guilt. In a numberof cases46 it was submitted before the Supreme Court thatthe use of one of the accused as a crown witness totestify against another accused in the same criminalcharge was in violation to Article 14 (3) (g) of theICCPR to which Indonesia has already been a party. TheSupreme Court, however, was reluctant to address theissue and as result the practice continued unchallengedin various subsequent cases.

The courts are also ambiguous in determining the legalweight of treaties. In a case on judicial reviewconcerning the Law No. 3 of 1997 concerning Child Court,47

the Constitutional Court dealt with the question of thebinding nature of treaties. In this case, the applicantrequested the Court to annul, inter alia, Article 4 (1) of theLaw No. 3 of 1997, which determined that eight years oldis a minimum age for a child to be eligible to be tried

45 Setiyono, ‘Eksistensi Saksi Mahkota sebagai Alat Bukti dalam Perkara Pidana’(Existence of Crown Witness as Evidence in Criminal Cases) , 5 LexJurnalica (2007) 1, 29-37; Adi Andojo Soetjipto, Menyongsong dan TunaikanTugas Negara Sampai Akhir: Sebuah Memoar (Carry Out and Exert State’s Taskstill the End: A Memoir) (2007), 167.46 MA, Ferry case, case No. 72 PK/Pid/2010, 43; MA, JUN HAO case, case No.143 PK/Pid.Sus/2011, 50.47 MK, case No. 1/PUU-VIII/2010, Judicial Review of Law No. 3 of 1997concerning Child Court, 113.


before the court. The applicant argued that such minimumage is not compatible with the minimum age determined byinternational legal instruments and a number of the UNrecommendations. In the proceedings, the Government madethe following proposition:

One of the competences of the Constitutional Court is judicial review onnorms contained in a law including the Law No. 3 of 1997 concerning ChildCourt. The Constitutional Court shall use the Constitution as a pillar for thereview, while the Court may use treaties as reference ‘ad-informandum’.

The Constitutional Court did not, however, specificallyaddress the government view but it held:

The Court is of the view that treaties, recommendation of the UNCommittee on the Rights of Childs and other international legalinstruments stipulate that 12 year-old may be used as a comparative toolin order to determine minimum age for a child to be responsible before thelaw. Nevertheless, the Court holds that international legal instrument andrecommendation ‘as such’ could not be used as a tool of review inexamining the constitutionality of minimum age for child.48

The Constitutional Court was unfortunately ambiguous.While it held in the beginning that treaties may be usedas comparative tool, it made on the subsequent paragraphan ambiguous statement by stating that internationallegal instruments and recommendations (not included‘treaties’) could not be used as a tool of review ‘assuch’. There is no clear indication from the judgmentwhether or not the Court deliberatively excluded the term‘treaties’ on this view so that it might induce thattreaties may be used as a tool of review. The ambiguityhas left the question about the legal weight of treatiesbefore the Court unanswered.

The Constitutional Court in various cases frequentlyreferred to some international instruments to which

48 Ibid, 151.AGUSMAN, DAMOS: THE COURTS AND TREATIES: INDONESIA’PERSPECTIVE22

Indonesia is party but left them undecided in terms oftheir domestic status. The Court has made reference tothe International Covenant on Civil and Political Rights(ICCPR) of 196649, the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment1984,50 the United Nations Convention against IllicitTraffic in Narcotic Drugs and Psychotropic Substances1988,51 and the Convention on the Rights of the Child,1989.52 The Constitutional Court has hardly made adetermination on the domestic status of those treatiesdue to the nature of its competence whereby it is onlyauthorized to deal with the question of the legality of alaw under the case against the Constitution. It seemsthat references to those treaties are mainly intended tosupport the arguments concerning the provisions of thelaws, which were deemed unclear. The courts, therefore,are not expected to endorse the authoritative nature ofthe treaties under domestic law. It is interesting tonote, however, that the Court has hardly addressed thequestion whether these treaties are already incorporatedinto domestic law. The very legal fact that Indonesia isbound by theses treaties and that Indonesia has ratifiedthem at international level was apparently sufficient toregard these treaties as relevant to be invoked. At anycase, there was no legal argument of the courts in thesecases which rules out the binding force of these treaties

49 MK, case No. 065/PUU-II/2004, Judicial Review Law No. 26 of 2000concerning Human Rights; MK, case No. 013-022/PUU-IV/2006, JudicialReview of Law of No. 27 of 2004 concerning Commission on the Truthand Reconciliation; MK, case No. 2-3/PUU-V/2007, Judicial Review ofLaw No. 22 of 1997 concerning Narcotics (2007); MK, case No. 5/PUU-VIII/2010, Judicial Review of Law No. 11 of 2008 concerningInformation and Electronic Transactions.50 MK, case No. 21/PUU-VI/2008), Judicial Review of Law No.2/Pnps/1964 concerning the Methods of Capital Punishment.51 MK, case No. 2-3/PUU-V/2007, Judicial Review of Law No. 22 of 1997concerning Narcotics.52 MK, case No. 1/PUU-VIII/2010, Judicial Review of Law No. No. 3 of1997 concerning Child Court.


to Indonesia on the account of their non-incorporatedstatus.

On the other hand, Indonesian courts have even movedforward to use treaties that are not binding Indonesia.Despite the fact that Indonesia is not party to theVienna Convention on the Law of Treaties of 1969, itinvoked Article 27 on internal law and Article 31 oninterpretation in order to ensure that Indonesia had notviolated its obligations under a treaty.53 Unfortunately,the Court neither makes any argument explaining why itapplies conventional provisions that are not bindingIndonesia nor does it suggests that Indonesia is bound bythem by virtue of customary international law.54 However,the application of Article 31 of the Convention tointerpret the provisions of the ICCPR and the UNConvention Against Illicit Traffic in Narcotic Drugs andPsychotropic Substances of 1988, suggested that thecourts may interpret treaties employing rules recognizedby international law instead of domestic rules ofinterpretation.

On a human rights case, the Supreme Court in itsdecision in 200755 makes reference to treaties thatIndonesia is not yet a party to. In identifying thecrimes against humanity, it invokes reference asenvisaged in Article 7 (3) of the Rome Statute ofInternational Criminal Court of 1998 by which Indonesiais not yet bound. In the Teuku Bantaqiah case56 in 2000, the

53 MK, case No. 2-3/PUU-V/2007, Judicial Review of Law No. 22 of 1997concerning Narcotics, 420-425.54 It is worth noting that, as mentioned above, the ICJ in the Case ofPulau Ligitan and Sipadan, before applying the rules of the saidConvention to the case, it needed first to address question arisingfrom the status of Indonesia as a non-party to the Convention beforesuggesting that Indonesia is bound by the rules of the Convention ascustomary rules.55 MA, Eurico Guterres case No. 34 PK/PID.HAM.AD HOC/2007, 34-35.56 PN of Banda Aceh, Teuku Bantaqiah Case, No. 11/Pid.B/Koneks/2000/PN-BNA.


Court dealt with a crime that amounted to a crime againsthumanity conducted by 24 military personnel and onecivilian against Teuku Bantaqiah and 56 of his pupilsthat were first wounded and later shot dead. Theprosecutor charged the defendants with an ordinary crimeunder the criminal code because crimes against humanitywere not yet included in the Code. The Court, however,interpreted the criminal code with the aid of Article 7(1) Rome Statute and pronounced that such crime amountedto a crime against humanity.

(iii) Treaties as Tools of Interpretation

The courts have also used treaties as a tool ofinterpretation. In the Teuku Bantaqiah case as cited above,although not directly intending to apply to the case athand, the Court consulted provisions of the Conventionagainst Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment 1984 which had not yet beenincluded in the Criminal Code. The Court stated thatstates parties are obliged to include all of the acts oftorture as a criminal act in their laws, which alsoapplies to anyone who commits, tries to commit, givesassistance to, or is involved in the act of torture. TheCourt further stated that the states parties are alsoobliged to ensure that perpetrators of the criminal actscan be punished with a penalty appropriate for thatcriminal act. In the meantime, the Indonesian CriminalCode has not yet included the act of torture as envisagedby the provisions and, therefore, the Court could onlyrely on the ordinary criminal law. The Court did notexplain the purpose of citing this provision but itappears that the provision was used merely to clarify themeaning of the act of torture and to ensure that theperpetrator was punished by virtue of ordinary criminallaw in the absence of the implementing legislation.


Treaties used as aid to interpretation are alsodeveloped in the Case on Judicial Review of the Law No.26 of 2000 concerning Human Rights Court.57 In this casethe Constitutional Court was requested to invalidateArticle 43 of the Law, which allows the application ofthe non-retroactive principle by which the Court isauthorized to try those perpetrators who committed crimesspecified in the Law before the date of its enactment. Ithad been claimed by the applicant that the Article is inbreach of Article 28I (1) of the Constitution, whichstipulates that:

The rights to life, freedom from torture, freedom of thought andconscience, freedom of religion, freedom from enslavement, recognition asa person before the law, and the right not to be tried under a law withretrospective effect are all human rights that cannot be limited under anycircumstances.

The Court finally reached a conclusion that the non-retroactive principle is not absolute and subject torestrictive exception, i.e. the principle may be excludedfor the sake of recognition and respect of human rightsof others. In order to justify this far-reachingassertion, the Court cited provisions of legalinstruments to which Indonesia is not a party. The Court,however, put all instruments, whether or not Indonesia isa party, on the same foot without any difference intreatment. The Court cited Article 29 (2) of theUniversal Declaration of Human Rights, which says that:

In the exercise of his rights and freedoms, everyone shall be subject only tosuch limitations as are determined by law solely for the purpose ofsecuring due recognition and respect for the rights and freedoms of othersand of meeting the just requirements of morality, public order and thegeneral welfare in a democratic society;

57 MK, case No. 065/PUU-II/2004, 47-68.AGUSMAN, DAMOS: THE COURTS AND TREATIES: INDONESIA’PERSPECTIVE26

The Court also invoked Article 15 (2) of the ICCPR andArticle 7 of the European Convention on Human Rights,which provides provision similar to that of ICCPR. Theprovision states:

Nothing in this article shall prejudice the trial and punishment of anyperson for any act or omission which, at the time when it was committed,was criminal according to the general principles of law recognized by thecommunity of nations…

In a case on judicial review of the Law No. 22 of 1997concerning Narcotics, the Constitutional Court addressedthe important point raised by the Applicant, which arguedthat the death penalty stipulated in the Law violates theICCPR which prohibits it. In respect to the issue theConstitutional Court stated:

…legally, the legal nature of binding force of international law iscoordination legal order… the assertion by the Applicant could only legallyrelevant if by the stipulation of death penalty in its domestic legislation,Indonesia has violated its international obligation arising from a treaty.The spirit underlying the ICCPR is indeed the abolition of death penalty butit does not prohibit state parties to apply death penalty provided that thecrimes committed are the most serious crimes in accordance with the lawin force at the time of the commission of the crime… thus the inclusion ofdeath penalty in its domestic legislation has not constituted a violation ofits international obligation arising from a treaty.58

The Court then held that the Law No. 22 of 1997 is theimplementation of Indonesia’s obligations arising fromthe UN Convention on against Illicit Traffic in NarcoticDrugs and Psychotropic Substances 1988 and the crimesreferred to in the Law are crimes that are according tothe Convention particularly serious. The Court thenconcluded that by virtue of the Convention as interpretedin accordance with its ordinary meaning to be given tothe terms of a treaty pursuant to Article 31 of the58 MK, case No. 2-3/PUU-V/2007, 419-421.


Vienna Convention on the Law of Treaties, the stipulationof death penalty under the Law No. 22 of 1997 is animplementation of treaty obligation under the Conventionand the crimes referred to are the most serious crimesfor which ICCPR does not prohibit the application ofdeath penalty. The Constitutional Court in this caseinterpreted domestic law in a manner presuming the lawdid not constitute a violation of an internationalobligation of Indonesia arising from a treaty. But it isworth noting that the Court did not examine whether ornot the provision of the ICCPR has been incorporated intodomestic law before it considered whether there was aconflict between the Law and ICCPR. The Court onlyacknowledged that there is an international obligationarising from ICCPR but did not clearly confirm whethersuch obligation is binding in domestic law.

3. Evaluation

The growing number of judicial decisions that citetreaties recently demonstrates that treaties have becomewell-recognized legal instruments for Indonesian courts.There is no doubt that, on the one hand, the courts mayapply treaty provisions to the case at hand without andby virtue of national legislations. On the other hand,the attitude of the courts towards treaties asdemonstrated in a number of cases above does not revealany clear indication on the question of the status oftreaties under domestic law especially with regard to themethod on how the legal system incorporates treatiesunder domestic law.

It appears from the judicial attitude that there is noconsistency with regard to the courts treatment accordedto treaty norms. Neither the law nor the courts couldprovide clarification as to whether treaties they have


invoked are applicable law of the forum and, if not, towhat extent judges are allowed to apply such treaties.Nor it is clear whether by making such treaty references,treaties as referred to are regarded by the courts aslegal sources of law in the sense that they areauthoritative applicable law and are allowed by thecourts as of right; or whether they are simply used asevidences to an existing statutory norm withoutauthoritative weight and perceive them simply as non-formal sources of law due to their significance in termsof their legal consideration. It might be the case thatthe courts resort to treaties on the account that theprovisions of Constitution and laws reveal ambiguitiesand uncertainties and take alternative courses ofinterpretation possible for the purpose of arriving at asolution most conductive to reason and justice.Transformation and adoption modes are interchangeablypresumed under the judicial practices.

The fact that Indonesian courts also make reference totreaties to which Indonesia is not a party may raiselegal questions related to the treatment of treaty norms.There is no clear indication from the arguments of thecourts whether the legal weight of these non-bindingtreaties shall be distinguished from those that bindIndonesia, even for the purpose of providing aid tointerpretation, since such a distinction is not alwaystaken into account. Consequently, the answer to questionssuch as what the legal basis would be and to what purposethe invocation of a non-binding treaty provision shouldbe is still unclear.

It is, however, quite clear that the courts haveneither prescribed that the validity of a treaty inquestion shall depend on transforming legislation norstipulated that such a treaty shall be transformed in a


national legislation to be applicable in the given caseas envisaged by a strict dualist system.

The decision of the Constitutional Court in the recentcase concerning the ASEAN Charter, which is expected toclarify the domestic status of treaties, also failed tomake a legal determination on this very subject matter59.While indicating that the Charter forms part of domesticlaw, the Court is still ambiguous in explaining how andby what means the Charter becomes domestically valid.Instead of clarifying the means, the Court even made acontroversial argument stating that:

‘…since the ASEAN Charter is embodied in the Law No. 38 of 2008, whichapproved/ratified it,… and as a law it shall be binding the Parties to it,therefore State Parties to ASEAN Charter are bound by the Law’. 60

Although the Court finds that such an interpretationdoes reflect the reality since other states are neversubject to any domestic law, the Court implies that it isbound to interpret it in that manner because of theundeniable fact that the Charter has been embodied in theLaw No. 38 of 2008. Consequently, the Court has for thisparticular reason recommended that the use of the formlaw for approving/ratifying should be abandoned.

The Court has not indicated whether or not the Charterhas acquired its domestic status by means of the Law, nor

59 Further comments on the ASEAN Charter case before theConstitutional Court may be found in Agusman, Damos Dumoli, Apakah MKbisa Menguji Piagam ASEAN? (Can Constitutional Court review ASEANCharter?), ANTARA News (25 July 2011), accessible athttp://www.antaranews.com/berita/268734/apakah-mk-bisa-menguji-piagam-asean, last visited on 9 April 2013; Agusman, Damos Dumoli.Arti Judicial Review Piagam ASEAN bagi Sistem Hukum Indonesia(Significance of Constitutional Court’s Judicial Review of ASEANCharter to the Indonesian Legal System), Opinio Juris, ForeignMinistry, Vol. 13 Tahun 2013.60 MK, case No. 33/PUU-IX/2011, 194-95; The Court states: KarenaUndang-Undang berlaku sebagai norma hukum, maka Negara Indonesia dan negara lain,dalam hal ini negara ASEAN wajib terikat secara hukum oleh UU 38/2008.


has it even declared whether such a domestic status isnecessary. Having interpreted the existing constitutionalorder, the Court has simply stated that the Law No. 38 of2008 serves as a legal basis for the validity of theASEAN Charter without making a distinction as to itsvalidity between domestic law and international law. Thiswould erroneously mean that the Law No. 38 of 2008 grantsvalidity to the Charter either in domestic law orinternational law.

The Court is fully aware that such a conclusion isfallacious. The Court invokes the fact that the Charterembodied in the Law as forcing it to take such afallacious outcome. In the next paragraph it argues itsown conclusion by stating that:

Treaty obligations are not derived from the fact that the treaty is ratified bythe law of the Parties but arise because the Parties agree to them by virtueof the legal principle of pacta sunt servanda.61

From this view, it appears that the Court is actuallyreluctant to subscribe to the idea that the Law No. 38 of2008 grants validity to the Charter but is compelled tocome to such conclusion because the Law is intended toprovide a basis for such validity. The assertion that theLaw grants validity to a treaty does not automaticallybring about a conclusive view that it would alsoconstitute the incorporation of the Charter into domesticlaw. It seems that the Court does not hold the commonidea of distinguishing between the entry into force of atreaty at international level and that of domestic levelby means of incorporation. It is to suggest that the

61 Ibid, 195; The Court states: Kewajiban yang dibebankan kepada suatunegara oleh perjanjian internasional tidaklah lahir karena perjanjian internasionalbersangkutan telah disahkan sebagai Undang-Undang oleh pihak negara lain tetapikewajiban tersebut lahir karena para pihak dalam hal ini negara-negara sebagai subjekhukumnya telah menyetujui bersama suatu perjanjian. Hal demikian sesuai dengan asaspacta sunt servanda.


Court uses a monist line of thinking, by which it holdsthat once a treaty enters into force to the state, thetreaty would automatically be binding in domestic law.The Court decision has therefore not yet contributed tothe attempt for seeking a legal determination of thedomestic status of a treaty as well as the mode forgranting its domestic validity.

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Documents

Treaties before Indonesian Courts