Strengthening the legal foundation of Indonesia’s foreign policy

On Sept. 14, 1999, Indonesia adopted Law No. 37 on Foreign Relations. With this adoption, Indonesia became one of the few countries to have a separate law on foreign relations.

The law was introduced as the reform era in the country began to unfold. One important purpose of having the legal foundation is to ensure the country’s legal security when formulating, producing and implementing foreign policy. The country will be more confident in conducting foreign affairs when it feels that its steps are not legally problematic. Legal security has often become a minimum denominator for the viability of a country’s foreign policy.

In general, there are four sources that can serve as legal bases for foreign relations and foreign policies of a country, namely the constitution, legislation and other regulations, treaties and executive agreements and international legal instruments to which a country binds itself.

A constitution is the most common legal reference. It is the primary document that contains the core directions for foreign relations and foreign policies of a country. Stipulations that can be found in almost every constitution include the declaration of war, the ratification of treaties or agreements and the appointment of ambassadors and acceptance of foreign ambassadors. A country’s constitution also generally includes clauses specifying institutions that are responsible for its foreign relations and foreign policies.

Other national legal sources would include specific laws (such as Law No. 37/1999, Foreign Policy Reform Act, and the Logan Act) and treaty-related laws (such as legislative-executive agreements and executive agreements). Some important international legal instruments in relations among nations are the 1961 Vienna Convention on Diplomatic Relations and its Optional Protocol, the 1963 Vienna Convention on Consular Relations and Optional Protocols, and the 1969 Convention on Special Missions.

Along with the continuous globalization of human rights, international human rights instruments like the ICCPR, ICESCR, CEDAW, CRC, CAT and CERD, as well as International Labor Organization (ILO) conventions, have become increasingly important as legal sources for a country’s foreign relations. Many countries integrate the values and principles embodied in those instruments as part of the moral underpinning of their foreign policies.

Since the adoption of the Law of Foreign Relations, changes have happened in the landscape of Indonesia’s foreign policy. Civil society groups that have strong interests in foreign affairs have been proliferating. The role of media in imparting news on foreign relations is increasing, amplified by the broad use of social media networks such as Twitter. Indonesia’s foreign policy establishment has been expanding. As the result of regional autonomy, local governments play greater roles in a particular type of foreign relations. The foreign policy role of the Legislature is enlarging, not only the House of Representatives (DPR), but also the Regional Representatives Council (DPD).

In view of those new developments and their consequences in the coming years, the Law on Foreign Relations needs strengthening. There are at least two ways to strengthen the law.

A substantive change can be accommodated in the same legal source, such as amendments in the Constitution or the Law on Foreign Relations (vertical strengthening), or through the proliferation of legal sources issued by the branches of the executive, legislative or even the judiciary (horizontal strengthening).

One illustration of vertical strengthening is when the Dutch Parliament made changes to the Netherlands’s Constitution in response to the Dutch contingent’s bitter experience associated with the fall of Srebrenica into the hands of Serbian troops in 1995. This event led to the massacre of around 8,000 Bosnian Muslims in the city.

The Dutch contribution in UN peacekeeping missions is one important instrument of the country’s foreign policy. The fall of Srebrenica set a critical context for constitutional change in the country. Considering the Srebrenica experience, the Dutch Parliament introduced two new articles in its 2002 Constitution, namely Article 97 regarding the deployment of Dutch troops in peace operations and Article 100 on the Government’s obligation to notify the States General on the deployment of troops.

As regards horizontal strengthening, one example is when, in early 1990s, Japan had to respond to international pressure to not just rely on checkbook diplomacy for its contribution to international peace and security but also provide personnel, including Japanese Self-Defense Force troops, for international peacekeeping missions such as in Cambodia. But Japan has a constitutional limitation. Under Article 9 of its constitution, Japan is prohibited from using force in bringing an end to international conflict. As a way out, Japan did not make changes to its constitution, but instead adopted the International Peace Cooperation Law.

In light of strengthening the Law on Foreign Relations and taking into account present conditions and future developments, there are at least 11 aspects that need considering. They include: the doctrine of foreign policy and the principles and fundamental commitments in the relationships among nations; governmental actors of foreign relations (executive, legislative, judiciary) and non-governmental; the relationship among actors; regional autonomy and foreign relations; consistency and coherence of policy vis-à-vis the diversity of actors in foreign relations and foreign relations; foreign policy planning; institutional aspects; management and organizational aspects; dispute settlement; the choice of foreign policy instruments; and foreign policy and democracy. These are key elements that should exist in a separate law on Indonesia’s foreign relations and foreign policy, such as Law No. 37/1999.

A strengthening effort should consider that foreign policy cannot be formulated and implemented within a too-rigid legal framework. The legal framework should provide room for flexibility and innovation. This is important considering the contexts of foreign policy that change from time to time, and therefore adjustments can be made without making substantial changes to a legal framework with a usually quite time consuming process. In other words, the legal framework needs not preclude the existence of alternative measures outside the framework that are considered appropriate according to the demands of new developments.

As a final point, the paramount importance of a strengthened Law on Foreign Policy will lie in its usefulness and its full adherence by the people and government. The law should help Indonesia become more responsive to present challenges and navigate the country through the constantly changing environment at home and abroad with a great sense of legal security and confidence.

The writer is an assistant to the presidential special staff for international relations. The opinions are his own.