KUSNIATI, RETNO (2022) TRANSFORMASI HUKUM INTERNASIONAL KE DALAM HUKUM NASIONAL TERKAIT HAK MASYARAKAT HUKUM ADAT ATAS PEMBAGIAN KEUNTUNGAN (ACCESS AND BENEFIT SHARING) PEMANFAATAN SUMBER DAYA GENETIK: Studi Perbandingan Antara Indonesia dan Thailand. S3 thesis, DOKTOR ILMU HUKUM.
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Abstract
The transformation of international law into national law has essential meaning in realizing the objectives of international treaties. In general, countries regulate the relationship between international law and national law in their constitutions. However, The Indonesia Constitution and Indonesian laws concerning international treaties did not explicitly and clearly regulate how international law is applied in national law. The transformation problem is studied by comparing it with Thailand's practice, considering that both have similarities as a megadiversity country and ratifying the Convention on Biological Diversity/CBD). The CBD derivation was formed by the Nagoya Protocol on Access to Genetic Resources and The Fair and Equitable of Benefit Arising from Their Utilization to The Convention on Biological Diversity (NP). However, the two countries show different historical backgrounds, ideologies, cultures, and legal systems. CBD and NP require the state to take legal steps to regulate a benefit-sharing system between providers and users of genetic resources (Access and Benefit Sharing (ABS) and recognize the role of indigenous peoples. What is the meaning of the ABS concept in international law, how does the transformation compare and how does the ABS system practice compare in Indonesian and Thai national law. Through these problems, this study aims to analyse and compare: the meaning of the ABS concept, the practice of transforming international law in Indonesia and Thailand and the practice of the ABS system in Indonesian and Thai national law. The research results show that the ABS concept means that every use of genetic resources requires benefit sharing, which contains two fundamental values of equality and justice, which is carried out according to the principles of Free Prior Informed Consent/FPIC Mutually Agreed Term/MAT. Meanwhile, Indonesia's transformation practice shows inconsistencies. On one hand, international law can be applied immediately (a monism characteristic). On the other hand, it requires a formal and substantial conversion into national law (a dualistic characteristic). Thailand regulates relation international law and national law in the 2017 Constitution. It affirms a dualism system, making it easier for Thailand to respond to its international obligations by transforming the ABS CBD and NP systems by building a sui generis system, namely the Plant Varieties Protection Act 1999/PVP and The Protection and Promotion of Traditional Thai Medicine/1999. The transformation of the ABS system in Indonesia is limited and sectoral related to the permit access system for foreign researchers to take Indonesian genetic resources (Law Number 11 of 2019 concerning the National System of Science and Technology and Government Regulation Number 41 of 2006 concerning Permits to Conduct Research Activities). Future legal developments are needed by: 1) recognition of the new rights of indigenous peoples access and benefit sharing as compensation for access to genetic resources and traditional knowledge; 2) determining the position of international law in the constitution by integrating the choice of doctrine in Article 11 of the 1945 Constitution of the Republic of Indonesia where for law making treaties should be transformed into national law; and 3) the establishment of an ABS regime that is sui generis the law of genetic resources and the law of traditional knowledge. However, the realization of the three policies can fulfil certainty, benefit, and fairness of access to providers and users of genetic resources and traditional knowledge so that genetic resources are protected and can become sustainable development resources. Keywords: transformation of international law into national law; access and benefit sharing; comparison between Indonesia and Thailand.
| Type: | Thesis (S3) |
|---|---|
| Subjects: | L Education > L Education (General) |
| Divisions: | Pascasarjana > S3 Ilmu Hukum |
| Depositing User: | KUSNIATI |
| Date Deposited: | 23 Jun 2022 07:41 |
| Last Modified: | 23 Jun 2022 07:41 |
| URI: | https://repository.unja.ac.id/id/eprint/34217 |
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