Tanggung Jawab Hukum Bank Dunia dan IMF atas Dampak Negatif Kondisionalitas Pinjamannya di Negara-Negara Berkembang (Studi Kasus: Indonesia)

Abstract

 Foreign loan represent a dilemma for a state requiring loan fund. At one side, foreign loan represent an alternative which is good for overcoming the difference between national saving and the plan of national investment. On the other side, debtor state have to accept all loan conditions specified by a lender even the mentioned often generate the negative impact. That way also foreign loan which is the in form of multilateral, such as those which given by World Bank and IMF where its loan conditions (conditionality) have got a lot of attention and criticize because often generate the negative impact at economic area, politics and human rights, which happened in a number of developing countries, including Indonesia. This research is background by a number of question: first, why World Bank and IMF can apply the restrictive conditionality that often generate the negative impact in developing countries?. Then, is it possible judicially to sue World Bank and IMF responsibility because of their conditionality that generate the negative impact?. Last, how is the negative impact of World Bank and IMF conditionality in Indonesia?, is there any law step which can be used by Indonesia to put in claim for World bank and IMF?. How about Indonesia legislation that arranging foreign loan?. This research aim to to explain the factors causing World Bank and IMF can apply the restrictive conditionality that often generate the negative impact in developing countries. Judicially will be studied the existing international law systems ability in this time to be used developing countries in claiming responsibility of World Bank and IMF. This research also aim to know the negative impact of World Bank and IMF conditionality in Indonesia, knowing opportunity for the Indonesia to  claim the World Bank and IMF and know the availibility of national legislation arranging foreign loan. Based on the objectives that mentioned above, this research use the method of normative legal research with qualitative approach. Indonesia made as case study for the reason that Indonesia represent one of developing countries owning biggest foreign loan at World Bank and IMF. The instrument for collecting data is library research which use primary and secondary data. Result of the research shows that: first, World Bank and IMF can apply the restrictive conditionality in developing countries because of economic factor, politics and legal factor. In economic factor, high depending on World Bank and IMF loan have placed the government in a difficult position to negotiate conditionality. In political factor for example met that government of developing countries want the restrictive conditionality to be made as 'outside ally' utilize to execute the economics reform getting a lot of contradiction within the country. In legal factor, known that the World Bank and IMF do not have the coherent law definition about scope of conditionality. Second, normatively World Bank and IMF can be asked for a legal responsibility because of their negative impact of conditionality, but practically it is difficult to do because until now there is no jurisdiction forum which have a competence to pronounce judgement against the international organization. Third, negative impact of conditionality in Indonesia for example is intervention of World Bank and IMF in Bankrupty Law forming (1998). National law and regulation about foreign loan still not yet adequate. Last, until now it is so difficult for Indonesia and other developing countries to sue the World Bank and IMF This research suggest that the government of developing countries should build the economic independence utilize to secede from the depending on World Bank and IMF loan. World Bank and IMF by their self should give the coherent definition about scope of conditionality. In international law perspective, it requires to be performed by amandement for Section 34 (1) Statute of International Court of Justice so that international organization can be at law. In national law perspective, Indonesia need immediately borne national law of foreign loan.