사법분야 조약에 대한 인도네시아의 접근방식에 대한 연구

Study on the Indonesian Approach to Treaty in the Field of Private Law

Indonesia is Korea’s 2nd largest Investment country amongst ASEAN Countries. It stands a 4th place in terms of population and economic growth rate in 2018 reach 5.07%. As country expands its spending more treaty is concluded. No. 24 of 2000 concerning treaties(Indonesian Treaty Law) clearly states the treaty relating to the trade can be ratified through a presidential decree, not through promulgation. However, dualism practice dominates in court practice in the field of private law. The existence of a self-executing treaty is questionable because the Elucidation of the Indonesian Treaty Law requires the promulgation of implementing legislation to guarantee the legal certainty of every aspect in the conclusion and ratification of a treaty. Hence, a question arises regarding the existence of self-executing treaties in Indonesia in private law, particularly international trade. The research finds and concludes that self-executing treaties do not exist in Indonesia because they are only enforceable after the promulgation of implementing legislation. Ratification of a treaty is merely deemed to bind Indonesia as a party at the international level. At the national level, all persons and legal subjects in Indonesia are bound by laws (Peraturan Perundang-undangan) provided by Article 7 of Law No. 12 of 2011. Treaty may be used as a customary international law by Indonesian judges to make decisions when they handle cases relating to a treaty. Indonesian nationals may submit their disputes pursuant to the implementation of a treaty in the area of private law including free trade agreement before Indonesian courts. Yet, they can not establish their arguments merely on the treaty without referring it to its implementing legislation or other laws which have transformed this treaty. The message given through article 10 and 11 of the constitution seems different from the message given through the judgment of the Indonesian court. I hope 2020 revision of the Indonesian treaty law reflects the position of the Indonesian government clearly.