Abstract
The intensity of international relations conducted through treaties significantly increase in many aspects of life. However, the Indonesian legal system still not provides clarity regarding the meaning of ratification, status, and position of international treaties in national legal system. This lack of clarity makes the position of international treaties in national legal system is also unclear and ultimately causes the legal uncertainty on its implementation. In many cases, treaty will take precedence over national legislation, but in other cases, national legislation prevails over treaty. Furthermore, ratification of a treaty through a Law/Presidential Regulation makes a consequence that treaty that has been ratified, viewed from its legal instrument, is a part of national legislation because Law/Presidential Regulation is legal instrument which become part of Indonesian legislation system. However, viewed from the perspective of source of law, treaty is different and separated from national legislation. It can be said that the status of treaties in Indonesian legal system is unclear. On the one side, treaty is a part of national legislation, but on the other side, treaty is a source of law outside the national legislation. Treaty subject to the two setting regime on the opposite dimension, but not accompanied by provision that affirm the relationship between these two dimensions. Status of treaty that is not clear in the national legal system raises several issues and many questions from the perspective of legislation that still do not have the answer.
This research refers to three issues: first, what is the meaning of ratification of treaties under international and national law and how is the position of treaties that has been ratified in national legal system? Second, how is the implementation of treaties ratified by Law/Presidential Regulation viewed from the perspective of Indonesian legislation system? Third, what efforts that should be done to provide legal certainty regarding the status, position, and implementation of international treaties in Indonesian legal system?
The method used in this research is juridical normative approach, in which the research focuses on the use of secondary data by studying and examining the legal norms in the field of international treaties and Indonesian legislation system.
The findings of this research show that the Indonesian legal system still have not provided clarity regarding the meaning of ratification of international treaties in national legal system. The clear meaning of ratification of treaty in national legal system is the most fundamental issue to be analized because it will further determine the status, position, and implementation of treaty in national legal system. As long ratification does not provide a clear meaning, the treaties in national legal system will continue in uncertain position and ultimately cause inconsistent implementation of treaties in national legal system. Furthermore, affirmation and clear meaning of ratification of treaty in national legal system will also be able to answer the various issues or questions from the perspective of legislation. The effort that should be done to solve these problems is to establish constitutional provision as a basic norm (grundnorm) in order to create legal certainty of treaties in national legal system. Constitution, as the supreme law of the state, must explicitly mentions the meaning of ratification that will further determine the status, position, and implementation of treaty in national legal system. Creating legal certainty through constitutional provision is basically not emphasized in the selection of a particular doctrine which is often used in discussion concerning the relationship between national law and international law (monism and dualism), but the more important to do as an effort to create this legal certainty is to determine unequivocally what the meaning of ratification of treaty in national legal system (incorporation or transformation).