REVIEW BUKU Judul : Treaties Under Indonesian Law: A
Transcription
REVIEW BUKU Judul : Treaties Under Indonesian Law: A
JURNAL OPINIO JURIS Vol. 17 Januari – April 2015 REVIEW BUKU : 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 : Dr. Haryo Budi Nugroho Comprehensive and well structured, those are the two words to describe the book titled Treaties Under Indonesian Law: A Comparative Study. The Author, Dr. iur Damos Dumoli Agusman, is not a stranger in Indonesian international law community. He was once the Director for Treaties for Economic and Social Cultural Affairs, and currently the Secretary for the Directorate General for Legal and Treaties Affairs of the Ministry of Foreign Affairs of Indonesia. This book is based on his doctoral dissertation at the Goethe University of Frankfurt, where he obtained the predicate of magna cum laude. Diplomat with a legal background, the author expresses not only his expertise in the subject matter but also the reality of the real world practice. 71 JURNAL OPINIO JURIS Vol. 17 Januari – April 2015 From Indonesian legal literature perspective, the book managed to explain the history of the Indonesian legal approach with regard to treaties, as well as the practice throughout Indonesian history. It then successfully concludes by describing the current practice in Indonesia, its positive and negative side, and carefully framing the main question: where is the rank of treaties in the Indonesian legislative structure. Reading this book makes us not to only understand Indonesia treaty law, but Indonesian legal system context is nicely elaborated to provide a better understanding of other areas of Indonesian law. The author explains the struggle that Indonesia is going through since its independence to construct its own legal system. Generally, the division of the era in this book, Independence/Old Order, New Order, and Reformation Era, are generally accepted division of Indonesian history. Most importantly, it successfully explains the transformation of the Indonesian’s government structure. Those are important factors in understanding how Indonesian treats international law, and why such treatments are given. Then comes the big topic: the debate between a dualist and monist approach to international law in domestic legislation. Everyone who studied law would consider this as a nightmare. This book does not fall in the complication in answering this question. It explained the two 72 JURNAL OPINIO JURIS Vol. 17 Januari – April 2015 concepts, and carefully discusses theoretical backgrounds of the two approaches, which serves as foundation in assessing what kind of approach that is practiced by states. It further explains the other theoretical concepts of adoption and transformation, as well as direct and indirect effects of treaties. The book then briefly describes the development of these theories as practiced by States. The bread and butter of this book actually lays in the comparative study with four other legal systems, which demonstrate how theories are being applied. The States that under reviewed are China, South Africa, Germany, and most importantly the Netherlands, the former colonial power of Indonesia who gives big influence in Indonesian legal system. Each of the legal systems are discussed sufficiently, in order to give ideas where Indonesian stands in regard to its approach to treaties. Though the selection of the States in the comparative study is generally civil law system, the discussion of the direct-indirect effects (self executing - non self executing) approach, in particular in the United States system, gives a nuance of the common law system. Unlike the general notion that most countries will inherit the legal system from their former colonial power, Indonesia did not adopt the entirety of the Netherlands system but rather struggle to develop its own. This book is very honest in [revealing the answer of the main question], as there is not a definite answer with regard to the position of treaties in Indonesian 73 JURNAL OPINIO JURIS Vol. 17 Januari – April 2015 legal system. However, the elaboration in this book helped to understand the Indonesian approach with regard to treaty, and how it will be treated in Indonesian system. It covers not only the structural discussion with regard to treaties in Indonesian legal system, but also the behavior of the judicial organs. With the development of international communities, the subject of relation between international and domestic law are no longer exclusively the domain of international law subject. With the journey of time, treaties are more influential to individual activities in one State. Historically, it started with human rights related treaties; nowadays it developed to international trade related treaties, whereas more and more individuals are affected directly with the provisions of international law. This development should be understood not only to international lawyers, but all legal practitioners including those who are advising the parliament as well as the governments. This book will provide the reader with the necessary information in order to understand the relation between international law and the Indonesian domestic system. This book has added an important piece in Indonesian legal literature. On one side it helps the outside world to understand Indonesian treaty practice, and on the other hand it opens the eyes of the Indonesian legal 74 JURNAL OPINIO JURIS Vol. 17 Januari – April 2015 community on the struggle of the Indonesian legal system in its approach with regard to treaties. Such understanding is necessary even since they are studying law so by the time they graduated they are equipped with thorough knowledge of the intertwine between domestic and international law, because it have to be acknowledge that exclusive separation between domestic and international law in real practice does not exist. Therefore, without a doubt, I highly recommend this book for students, international and domestic legal practitioners, as well as for those who works for government and the parliament. 75