Articles
<![CDATA[Fighting the Giants: Efforts in Holding Corporation Responsible for Environmental Damages in Indonesia ]]>
<![CDATA[Arie Afriansyah]]>;
<![CDATA[Anbar Jayadi]]>;
<![CDATA[Angela Vania]]>
<![CDATA[ Hasanuddin Law Review VOLUME 4 ISSUE 3, DECEMBER 2018 ]]>
Publisher : <![CDATA[Faculty of Law, Hasanuddin University ]]>
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DOI: 10.20956/halrev.v4i3.1626
<![CDATA[This paper focuses on examining environmental cases before the Indonesian courts from the past ten years. To be specific, this paper will study four major cases with regard private law, six major cases with regard to criminal law, and class action cases in Indonesia. This period of time explains trending increase of environmental cases before the courts. In this regard, Alternative Dispute Resolution (ADR) becomes the main preference of settling the environmental disputes. However, ADR seems not able to bring justice to the fullest especially when it comes to the corporations. It is not justice to the fullest in the sense that there seems no deterrence ADR brings to the corporations when the corporations do indeed damages the environment. As the environmental awareness increases and at the same time, ADR seems fail to fulfill the expectation to save the environment, another way to bring justice emerges namely through various efforts in lawsuits. Nevertheless, such lawsuits are not perfect as there are varieties of results from Indonesian courts. This paper argues that such variety of decisions have been heavily influence by the availability of scientific data and the knowledge of the panel of judges. Specifically, in the case of class action lawsuit, those who defend the environment has limitation on resources usually initiate such lawsuit. Whereas, corporation that being sued is relatively have the capacity to face the trial due to its high financial resources. Nevertheless, “fighting the giants” has been the paradigm when it comes to pursue the responsibility of corporation of its wrongdoing especially environmental damages.]]>
<![CDATA[FOREIGNERS LAND RIGHTS REGULATIONS: INDONESIA’S PRACTICE ]]>
<![CDATA[Arie Afriansyah]]>
<![CDATA[ Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada Vol 27, No 1 (2015) ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Gadjah Mada ]]>
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DOI: 10.22146/jmh.15913
<![CDATA[The issue of the sales of Indonesian Islands to non-Indonesian Citizen has seized the attention of Indonesian people nationally. It is thought that such sales will affects the sovereignty of Indonesia’s territory. This article will focus on two main issues, namely how the rule of law regulates acquisition and management of areas that go to the sovereignty of a country and how or what the main problems faced by Indonesia in maintaining the territorial integrity of the Republic of Indonesia, especially the business of selling some islands to non-Indonesian citizens. Isu penjualan beberapa pulau di Indonesia kepada warga Negara asing telah menyita perhatian masyarakat Indonesia secara nasional. Diperkirakan bahwa penjualan tersebut akan mempengaruhi kedaulatan wilayah Indonesia. Artikel ini akan fokus pada dua isu utama, yaitu bagaimana aturan hukum mengatur dalam hal perolehan dan pengelolaan kawasan yang masuk dalam kedaulatan suatu negara dan bagaimana atau apa masalah utama yang dihadapi oleh Indonesia dalam menjaga keutuhan wilayah Republik Indonesia, khususnya bisnis penjualan beberapa pulau kepada pihak asing.]]>
<![CDATA[Dispute Settlement Mechanism In Bilateral Investment Treaties (BITs) ]]>
<![CDATA[Yetty Komalasari Dewi]]>;
<![CDATA[Arie Afriansyah]]>
<![CDATA[ Yuridika Vol. 34 No. 1 (2019): Volume 34 No 1 January 2019 ]]>
Publisher : <![CDATA[Universitas Airlangga ]]>
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DOI: 10.20473/ydk.v34i1.11403
<![CDATA[The Bilateral Investment Treaty (BIT) or in Indonesia known as “Perjanjian Promosi dan Perlindungan Penanaman Modal (P4M)” contains a very powerful dispute settlement mechanism that allows investors to file a lawsuit directly against a host country allegedly violating investment protection under international law. This is known as Investor-State Dispute Settlement (ISDS). The ability of investors to “impose” their rights directly against a country without the existence of an arbitration clause is considered as one of the extraordinary achievements of the BIT innovation. This paper discusses two types of dispute resolution models contained in almost all BITs signed by Indonesia, namely State-State Dispute Settlement (SSDS) and Investor-State Dispute Settlement (ISDS). It also elaborates the weaknesses of the current dispute resolution formula, especially in the ISDS clause and provides the possibility of improvements to the formulation of the ISDS clause to better ensure a balance between the protection of foreign investors and the needs of the host country.]]>
<![CDATA[ASEAN’S HUMAN RIGHTS BODY: NEW BREAKTHROUGH FOR HUMAN RIGHTS PROTECTION IN SOUTH EAST ASIAN REGION SOME PRELIMINARY NOTES FROM INDONESIA’S PERSPECTIVE ]]>
<![CDATA[Afriansyah, Arie]]>
<![CDATA[ Indonesia Law Review ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[On 21 November 2007, leaders of the Association of South East Asian Nations (ASEAN) promulgated the ASEAN Charter (the Charter). Not only does it provide legal basis for ASEAN’s legal personality; it also provides new legal norms for its member states. One of those that need to be discussed is the establishment of ASEAN’s Human Rights Body (the Body). This obligation is stipulated in Article 14 of the Charter, which stresses the commitment of member nations to protect human rights. However, the establishment of the Body has faced numerous pessimistic opinions regarding the organisation’s capability to protect human rights considering its notorious reputation over this matter. The article is fosucing on some areas of concerns that need to be looked at to put the Body into operation. Some important lessons from the European Human Rights Body is examined as comparison.]]>
<![CDATA[REFUGEES RESETTLEMENT: A REVIEW OF INDONESIAN LAWS AND PRACTICES ]]>
<![CDATA[Afriansyah, Arie]]>;
<![CDATA[Zulfa, Eva Achjani]]>
<![CDATA[ Indonesia Law Review ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[This research analyzes the legal aspects of resettlement within the context of Indonesian law. First, it discusses the laws that related to the interaction between refugees and the Indonesian people. Second, this research will discuss how Indonesia applies Indonesian national law when it comes to the treatment of refugees during their period of resettlement. Third, this research will offer a proposal in regards to the structuring of national policy in terms of how the treatment of asylum seekers that have received refugee status as they await the process of resettlement. In cohesion to these three notions, this research utilizes a judicial-normative approach to analyze the doctrines as well as the requirements in international law as well as the concept and the opinions of scholars combine with rules found within national laws about the procedure of resettlement of a third party state for the refugees. By observing refugee camps in Jakarta, Medan and Kupang during 2016, it concludes that national immigration law in Indonesia is heavily embedded within the Law No. 6/2011 about immigration and the Director-General’s decision No. IMI-1489.UM.08.06 at the year 2010 about the handling of illegal immigrants. Further, this article argues on the need of regulatory measures in place in regards to the capacity of institutions in Indonesia in the handling of refugees so that more extensive coordination can be achieved in.]]>
<![CDATA[Port Readiness in Facing Globalization: Indonesian Case Study ]]>
<![CDATA[Ariadno, Melda Kamil]]>;
<![CDATA[Afriansyah, Arie]]>;
<![CDATA[Dewi, Yetty Komalasari]]>
<![CDATA[ Indonesia Law Review ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[International trade cannot be separated from the role of international shipping. More than 80% of goods transported through sea from a region to another, from one Country to another Country. Since the dawn of the voyage, port cannot be separated from the voyage itself. Adequate port will ensure a good international shipping. Increasing number of international shipping also means increasing volume of international trade. With a variety of factors such as geographical factor, natural resources, and population, Indonesia should be a key player in international trade by sea. However, the reality is still far from ideal, especially when compared with neighboring countries. This research aims to map the condition and situation of ports in Indonesia, especially in the legal field so that can be known what things that can be recommended to optimize the role of Indonesian ports in international trade by sea.]]>
<![CDATA[The Adequacy of International Legal Obligations for Environmental Protection during Armed Conflict ]]>
<![CDATA[Afriansyah, Arie]]>
<![CDATA[ Indonesia Law Review ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[Since it first developed, the law of war has focused on protecting human beings. It prioritises human protection by controlling the conduct of belligerents in order to minimise human injuries and casualties. However, the consequences of war are seldom limited to human casualties. War also causes major destruction to the environment. This article shows that despite prioritising human protection, international law provides a significant number of rules to protect the environment during armed conflicts. Contrary to claims that existing rules are insufficient, the law of war adequately safeguards the environment during armed conflicts by prohibiting certain military activities that may cause significant damage to the environment. Furthermore, there are peacetime regulations that may continue to bind belligerents in times of war]]>
<![CDATA[Legal Framework and Mechanism of Marine Fisheries Subsidies in the Aspects of International Trade and Sustainable Development ]]>
<![CDATA[Yusuf, Adijaya]]>;
<![CDATA[Ariadno, Melda Kamil]]>;
<![CDATA[Afriansyah, Arie]]>
<![CDATA[ Indonesia Law Review ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[Issues in fisheries have been regulated in various international conventions. The United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) has builta regime in the field of conservation and management of fishery resources based upon maritime zones or fish species that exist and available in this zone. However, UNCLOS 1982 only focuses on the issue of fisheries in the Exclusive Economic Zone (EEZ) and the high seas, thus it was not sufficient to overcome the problems of high frequent of fishing in maritime zones which are fully subject to the jurisdiction of coastal states, such as in the Inland waters, archipelagic waters and the Territorial Sea. This article aims to examine the legal framework and mechanisms of fisheries subsidies in the aspects of trade and sustainable development. In this article, discussion would carried out in order to examine the legal framework and mechanisms of marine fisheries subsidies that are implemented with the principles of fair-trade and sustainable development, both in the international level, as well as in the national level. Thus, this research is expected to be able to bridge the interests of developed countries and developing countries, especially Indonesia, in order to achieve fair trade in the field of fisheries and resource utilization of sustainable fisheries.]]>
<![CDATA[HUKUM INTERNASIONAL MADE IN GARUT? MENGKRITISI STATUS JUS COGENS ATAS PRINSIP KEHATI-HATIAN DALAM MANDALAWANGI ]]>
<![CDATA[Rizky Banyualam Permana]]>;
<![CDATA[Dewo Baskoro]]>;
<![CDATA[Arie Afriansyah]]>
<![CDATA[ Bina Hukum Lingkungan Vol 5, No 1 (2020): Bina Hukum Lingkungan ]]>
Publisher : <![CDATA[Pembina Hukum Lingkungan Indonesia (PHLI) ]]>
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DOI: 10.24970/bhl.v5i1.156
<![CDATA[ABSTRAKPutusan Mandalawangi merupakan putusan yang dianggap sebagai suatu terobosan hukum dalam bidang hukum lingkungan di Indonesia, karena putusan ini melakukan inkorporasi atas konsep precautionary principle dalam sistem hukum nasional Indonesia secara legal formal. Jus cogens, yakni suatu norma tidak terelakkan dalam hukum internasional merupakan perdebatan teoritis yang masih berlangsung. Putusan Mandalawangi memberikan status jus cogens atas prinsip kehati-hatian (precautionary principle) kemudian diamini dan diikuti oleh berbagai putusan maupun literatur. Dalam tulisan ini kami mencoba melakukan dekonstruksi kembali tentang status jus cogens atas prinsip kehati-hatian, dan kami meninjau bagaimana suatu norma dapat dilabeli sebagai jus cogens dalam teori, serta menelusuri ratio decidendi hakim dalam mencapai amar putusan atas jus cogens. Kami mengargumentasikan bahwa runutan pemikiran putusan tersebut mengandung suatu lompatan logika yang mengakibatkan argumentasi sirkuler. Kemudian kami berpendapat, para hakimlah yang harus mengutamakan ‘kehati-hatian’ itu sendiri dalam menerapkan konsep-konsep hukum internasional dalam putusannya.Kata kunci: Mandalawangi; jus cogens; prinsip kehati-hatian; Mahkamah Agung.ABSTRACThe judgment of Mandalawangi case is considered as a legal breakthrough in the field of Indonesian environmental law, because the judgment formally incorporated the concept of precautionary principle within the Indonesian domestic legal system. Jus cogens, which is a peremptory norm of international law, is a theoretically controversial subject that is still being debated. Mandalawangi judgment provided the status of jus cogens on precautionary principle which has been followed in the later judgement and decisions. In this article, we attempt to deconstruct the jus cogens status of precautionary principle, and we see how a norm could be labeled as a jus cogens theoretically, as well as retracing the rationale of judges behind the jus cogens status. We argue that the rationale behind the judgment contains a logical jump which causes a circular argument. Following this argument, we stressed that the judges shall employ a precaution in applying the concept of international law through their verdict.Keywords: Mandalawangi; jus cogens; precautionary principle; supreme court.]]>
<![CDATA[Perjanjian Investasi Bilateral: Self-Judging Sebagai Solusi? ]]>
<![CDATA[Sakina Fakhriah]]>;
<![CDATA[Arie Afriansyah]]>
<![CDATA[ Uti Possidetis: Journal of International Law Vol 3 No 3 (2022) ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Jambi ]]>
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DOI: 10.22437/up.v3i3.19436
<![CDATA[This article was prepared to formulate a strategy for formulating the drafting of exclusion clauses in bilateral investment treaties and legal policies that are in accordance with national security without violating international law. In its preparation, doctrinal legal research with legal objects is used which is conceptualized as a statutory rule based on the doctrine of positivism (normative juridical) schools. In the Discussion, it was found that Host Country has several options in implementing policies that put forward the national interest such as, asserting rights in agreements in good faith, including exceptions expressly, establishing definitions appropriately in agreements, mentioning special clause categories in agreements, conducting evaluations in a reasonable manner and self-judging. However, of the seven options already mentioned, self-judging is the most profitable option for host countries in implementing policies that orientate national interests. The self-judging clause is the choice of host country for two reasons. First, the clause gives the state discretion to unilaterally opt-out of international obligations and secondly, the evaluation of the elements for opt-out is not set out completely objectively from an external point of view, but only from the point of view of the state concerned.]]>
