Mekanisme Derogasi dalam Sistem Hukum Indonesia: Tinjauan Komparatif

The concept of derogation, or the abrogation of a treaty, is a complex and multifaceted aspect of international law. In the context of the Indonesian legal system, the mechanism of derogation holds significant implications for the country's international relations and its commitment to upholding international agreements. This article delves into the intricacies of derogation within the Indonesian legal framework, providing a comparative analysis with other legal systems to shed light on its nuances and practical applications.

Derogation in International Law: A General Overview

Derogation, in essence, refers to the partial or complete suspension of a treaty's provisions by a state party under specific circumstances. This mechanism is typically invoked in situations of emergency or national crisis, where the state's ability to fulfill its treaty obligations is significantly hampered. The International Law Commission (ILC) has recognized the legitimacy of derogation, emphasizing that it must be temporary and limited in scope. The ILC's Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) provides a framework for understanding the legal basis of derogation.

Derogation in the Indonesian Legal System: A Framework of Principles

The Indonesian legal system, rooted in a blend of civil law and customary law, has incorporated the principle of derogation into its domestic legal framework. The 1945 Constitution of Indonesia, the country's supreme law, acknowledges the importance of international law and treaties. Article 11 of the Constitution states that Indonesia's foreign policy is based on the principles of independence, permanent sovereignty over natural resources, and active participation in the maintenance of world peace. This constitutional provision implicitly recognizes the possibility of derogation in exceptional circumstances.

Comparative Analysis: Derogation in Other Legal Systems

A comparative analysis of derogation mechanisms in other legal systems reveals both similarities and differences with the Indonesian approach. In the United States, the concept of "treaty override" allows Congress to supersede treaty provisions through legislation. This mechanism, however, is subject to constitutional limitations and judicial review. In the European Union, the principle of "supremacy of EU law" dictates that EU treaties take precedence over national laws, including those related to derogation. This principle ensures the uniform application of EU law across member states.

Conclusion

The mechanism of derogation in the Indonesian legal system reflects a delicate balance between the country's commitment to international law and its need to safeguard national interests in times of crisis. While the Indonesian legal framework provides a general framework for derogation, specific legal provisions and judicial interpretations are crucial for ensuring its proper application. Comparative analysis with other legal systems highlights the diverse approaches to derogation, emphasizing the need for a nuanced understanding of this complex legal concept.