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All Journal Sriwijaya Law Review Cendekia: Journal of Law, Social and Humanities
Haniff Ahamat
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Religion Humanities Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Environmental Science Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Social Sciences Other

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Indonesia's Mineral Export Prohibition and Legality of Export Duties Under the GATT Rules Bani Adam; Haniff Ahamat
Sriwijaya Law Review Volume 6 Issue 2, July 2022
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol6.Iss2.1661.pp239-253

Abstract

The development of electric vehicles has been becoming a global trend to tackle worsening air pollution. The rich mineral country desires to reduce greenhouse gas (GHG) through transportation transformation by building a domestic-based battery vehicle industry. The policy resulted in importing export restrictions on nickel ore and bauxite by the Indonesian government. However, the measures are inconsistent with Article XI.1 of the GATT rules, which forbid imposing restrictions on the global market. There are cases in WTO DSB deciding that export restrictions infringe the provision, such as in China – Raw Materials (DS394) and China – Rare Earth (DS431) cases. In such cases, adjudicators also do not justify the imposition of export duties for the members. Meanwhile, Article XI.1 does not prohibit the imposition of export duties as another option to impose export restraints. The Indonesian authority could apply the measures. This Article analyses Indonesia's justification for imposing export control through the GATT rules. The research is conducted based on a normative juridical approach in which the sources come from the rules of GATT and its DSB decision to analyse the extent to which the measures are allowed to take into force for the member regarding the GATT provisions. The Article finds that Indonesia may be justified in the imposition of export duties to control the export of both raw materials. Article XI.1 of GATT justifies the original and accepted members to impose the duties measures as there are unclear provisions on export prohibition, which means Indonesia could enforce the charge of duties implicitly.
History Of Raw Material Export Restriction By European Powers: Revisiting Colonial Past Adam, Bani; Haniff Ahamat
Cendekia : Jurnal Hukum, Sosial dan Humaniora Vol. 1 No. 2 (2023): Cendekia : Jurnal Hukum, Sosial dan Humaniora
Publisher : Lembaga Pusat Studi Sosial dan Humaniora [LPS2H]

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (773.6 KB)

Abstract

Acquiring control and monopoly over raw materials and natural resources was key to political, military and territorial expansions of European Powers in Asia, America and Africa. After World War 2, trade of goods become major concern under international trade regime which international legal order has clear rules against export restrictions on raw materials including on natural resources agreed under GATT 1947 Agreement. This paper inquires into the historical foundations of control and monopoly over raw materials and minerals, the legal rules that governed such conduct of States. This paper finds that control and monopoly were bread and butter to European colonisation of America, Asia and Africa, which flourished at the height of the mercantilist era. However, after the advent of the General Agreement on Tariffs and Trade (GATT), restrictions on exports are now restricted. The doctrine of intertemporal law describes what happens to the legality of an act when there is a change to an event and law. As established by Judge Huber on Island of Palmas case, there is difference between the creation of a right under the law and the continuation of that right transcending the past, the present and the future. This article is written regarding on historical approach which data sources originate from book of historians, such as Adam Smith and D.K. Fieldhouse. Some journals of relevant experts could be referred to find pathway of the raw materials controlled by the West power during colonialization era. The historical approach of this article Historical approach to research can shed light on how legal aspects of conduct that became subject of legal rules unraveled in response to historical event. As more developing countries are restricting exports of raw minerals including rare earth, there may now be associated with the rise of neo-mercantilism.
Co-Authors Adam, Bani Bani Adam