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Permanent Sovereignty vs. International Obligations Simbolon, Putu George Matthew; Yusro, Mochammad Abizar; Taniady, Vicko
Lentera Hukum Vol 11 No 2 (2024): LENTERA HUKUM
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v11i2.43342

This research analyses Indonesia's policies related to downstreaming and restrictions on raw nickel exports that have caused international debate, especially the European Union which complained against Indonesia to the World Trade Organization (WTO) in Dispute Settlement 592 (DS-592). The study explores Indonesia's position as a WTO member that is being questioned for its policy of banning nickel ore exports to the European Union, and examines the DS-592 ruling in relation to the permanent sovereignty debate. This article uses a normative juridical method with doctrinal, comparative, and case approaches. The results show that Indonesia has permanent sovereignty over its nickel ore guaranteed by UN Resolution 1803. Therefore, Indonesia must exercise this sovereignty with due regard to international obligations. Indonesia should learn from China's export regulations as it prioritises export restriction policies rather than export bans. By applying China's approach, Indonesia can prevent the problems that occurred in DS 592. However, a series of nickel downstream policies implemented by Indonesia have violated the provisions of the WTO Agreement. This article also explains that the vacuum of the Appellate Body does not negate the EU's authority to retaliate against Indonesia. This article concludes that Indonesia must implement a policy determining the percentage of downstream nickel ore, as well as nickel ore that will be exported. This conclusion has resulted in the theoretical idea that no sovereignty can be exercised in violation of the country's international obligations. Thus, each country must be able to establish policies that can balance national interests with international obligations. KEYWORDS: Export Restrictions, International Obligations, Nickel Ore, Soverignty, WTO.

When the Deforestation Meets the Free Trade: A Critical Analysis of the European Union Deforestation Free Regulation (EU DFR) Simbolon, Putu George Matthew
Journal of World Trade Studies Vol 8 No 2 (2023): Journal of World Trade Studies
Publisher : Journal of World Trade Studies

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22146/jwts.v8i2.10059

This article is written to provide an understanding for World Trade Organization members as European Union trade partners to respond to the EU Deforestation Free Regulation. In achieving that purpose, this article implements the normative method through the implementation of a doctrinal, cases, and conceptual approach. There are three discussions presented in this article. The first discussion express that the EU might violate the rules on non-discrimination under Articles I:1 and III:4 GATT, and the prohibition on quantitative restriction under Article XI:1 GATT. The second discussion expresses that the EU may violate Articles 2.1 and 2.5 TBT Agreement which prohibits the implementation of a discriminative technical regulation and the implementation which reflects an unnecessary barrier to international trade. Last but not least, the third discussion states that the EU may justify this measure based on the public moral, and the protection of human, animal, and plant life and health. The third discussion also expresses the finding of this paper which is that international cooperation can be utilized as an instrument that may address the conflict of interests caused by the implementation of the WTO law and the international environmental law.

Extraterritorial Act versus the Indigenous People Protection: An Analysis of the European Union Deforestation-Free Regulation Tehupeiory, Aartje; Simbolon, Putu George Matthew
PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW) Vol 11, No 3 (2024): PADJADJARAN JURNAL ILMU HUKUM (JOURNAL OF LAW)
Publisher : Faculty of Law, Universitas Padjadjaran

Show Abstract | Download Original | Original Source | Check in Google Scholar

At first glance, indigenous people and international trade appear to be two separate issues. However, this perception does not apply in the case of European Regulation 2023/1115. This study aims to provide an understanding of how Indonesia should respond to the EU DFR, which has affected Indonesia’s national interests in protecting indigenous people. This study applied a normative method through doctrinal and conceptual approaches to achieve the objective. The study covers two main discussions. The first explains how due diligence under the EU DFR has indirectly pushed Indonesia to become an EU trading partner and provide more excellent protection for local indigenous people to gain access to the Union’s market for its agricultural products. The second discussion explains how Indonesia should respond to this regulation by considering protecting its indigenous people and ensuring the availability of market access for Indonesian companies and traders. The first discussion states that the EU DFR will prohibit the export and import of agricultural products if the trading partner’s company does not provide adequate legal protection for its indigenous people. The second discussion suggests that Indonesia must better protect its indigenous people to secure market access to the European Union. However, if the EU regulator acts arbitrarily, Indonesia reserves the right to address these issues through the available means of trade dispute settlement under international law.

Petani Kelapa Sawit dalam Bahaya: Urgensi Indonesia dalam Membantu Petani Kecil untuk Bersaing Secara Adil di Lapangan Yenny, Oktavani; Simbolon, Putu George Matthew
SIGn Jurnal Hukum Vol 6 No 2: Oktober 2024 - Maret 2025
Publisher : CV. Social Politic Genius (SIGn)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.37276/sjh.v6i2.372

This research is conducted to express the urgency for the Government of Indonesia to adopt a regulation concerning the protection of palm oil smallholders. Such adoption is necessary since the partnership agreement between this minor group with the non-plantation enterprise is ineffective due to the conflicting interests between the Minister of Agriculture and the Minister of Industry. To achieve this purpose, this article is written based on doctrinal research by gathering rules under the MSMEs Law, the Competition Law, the Capital Investment Law, the Job Creation Law, and the SCM Agreement. This article is also supported by the justice fairness theory by Rawls. The first discussion of this article discusses the urgency to adopt this government regulation based on the MSMEs Law and the Competition Law which is to enforce the partnership agreement. Furthermore, the second discussion analyzes the Capital Investment Law and the Job Creation Law so that this aspired law shall balance the rights and obligations of the smallholders and the non-plantation enterprise. Last but not least, the third discussion discusses what to anticipate according to the WTO rules on subsidies. In the aftermath, this article suggested next research discussing the distribution of authorities between the MOA and the MOI.

Hasil Review Trade Policy Review Body WTO sebagai Unilateral Act of an International Organization Simbolon, Putu George Matthew
JURNAL USM LAW REVIEW Vol. 6 No. 2 (2023): AUGUST
Publisher : Universitas Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.26623/julr.v6i2.6981

This seeks to provide an understanding concerning the Trade Policy Review Body (TPRB) review perceived as a unilateral act of an international organization. The article is written based on the normative method through the application of doctrinal, conceptual, and case approaches. Furthermore, this article is also written by gathering primary and secondary legal sources. The article herein consists of three parts. The first part discusses the unilateral act as the source of international law as one of the international law norms outside the Article 38 paragraph (1) ICJ Statute. Meanwhile, the second part explains the weaknesses of TPRB which caused this organ unable to work under its effective means. Furthermore, the third part explains how the matters under the TPRB review outcome shall be conducted so that such a product can be qualified as a unilateral act applicable by WTO members under good faith. Based on the three discussions therein, this article suggests that the TPRB review outcome shall be perceived as a unilateral act of an international organization. Such perception can be actualized by applying imperative sentences in adopting the review outcome that will be issued for the reviewed member. Penelitian yang dijelaskan pada artikel ini bertujuan untuk menyediakan pemahaman mengenai bagaimana hasil review dari Trade Policy Review Body (TPRB) dapat dikualifikasi sebagai tindakan sepihak oleh organisasi internasional (unilateral act of an international organization). Artikel ini ditulis dengan menerapkan metode penelitian normatif melalui pendekatan doktrinal, konseptual dan kasus. Adapun bahan hukum yang digunakan yaitu bahan hukum primer dan sekunder. Artikel ini terdiri dari tiga bagian. Bagian pertama membahas tentang unilateral act sebagai salah satu hukum internasional yang tidak diatur di dalam Article 38 paragraph (1) ICJ Statute. Bagian kedua dari artikel ini kemudian menjelaskan tentang kelemahan dari TPRB yang membuat organ ini tidak dapat bekerja dengan efektif untuk saat ini. Kemudian bagian ketiga menjelaskan tentang kalimat yang harus digunakan dalam menyusun materi muatan hasil review TPRB agar produk tersebut dapat menjadi tindakan unilateral yang harus diterapkan oleh anggota WTO dengan iktikad baik. Berdasarkan tiga pembahasan tersebut, artikel ini menyarankan agar hasil review TPRB harus dipandang sebagai tindakan unilateral. Pandangan tersebut dapat diwujudkan melalui diterapkannya penyusunan kalimat imperatif pada laporan yang akan diterbitkan kepada anggota yang direview.

INDONESIA’S URGENCY IN ADOPTING GOVERNMENT REGULATION CONCERNING SMALLHOLDER-ENTERPRISE PARTNERSHIP: KEBUTUHAN MENDESAK INDONESIA DALAM MENGADOPSI PERATURAN PEMERINTAH TENTANG KERJA SAMA ANTARA PETANI KECIL DAN USAHA KECIL Yenny, Oktavani; Simbolon, Putu George Matthew
Constitutional Law Society Vol. 4 No. 2 (2025): September
Publisher : Pusat Studi Konstitusi dan Perundang-undangan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.36448/jcls.v4i2.108

This research aims to provide a solution for the Indonesian Crude Palm Oil Smallholders so that they can play on the same level playing field and may acquire international market access. Such urgency exists since a conflict of interest exists between the Indonesian Ministry of Industry and the Ministry of Agriculture in efforts to regulate the KBLI 10431 sector regarding the CPO palm oil industry. In aiming for this purpose, this research is implementing the normative method through the implementation of Indonesian regulations related to industries, agriculture, and trades. This method is also implemented by applying the rules of international trade law. The article herein consists of two discussions involving Indonesia's domestic regulations and Indonesia's compliance with the World Trade Organization. The first discussion explains Indonesia’s necessity to adopt regulations that accommodate the interests of the ministries of industry, agriculture, and trade. The second discussion explains Indonesia's urgency to adopt the government regulation therein due to the urgency in responding to unilateral environmental acts imposed by developed countries. From these discussions, this article recommends that the Indonesian government adopt a government regulation that may reconcile the conflicting interests within its executive branches. The article herein also stresses the urgency of adopting such a regulation to minimize Indonesia's climate litigation in the WTO Dispute Settlement Body.

Kebijakan Daftar Negatif Investasi di Indonesia: Tinjauan Mengenai Perdagangan Bebas dan Konservasi Spesies Ikan yang Terancam Punah Simbolon, Putu George Matthew
SIGn Jurnal Hukum Vol 5 No 2: Oktober 2023 - Maret 2024
Publisher : CV. Social Politic Genius (SIGn)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.37276/sjh.v5i2.297

This study examines and analyzes the problems arising from the interaction between Indonesian investment measures and compliance with the international trade regime. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that Indonesia has successfully justified the alignment of its Negative Investment List policy regarding endangered fish species, listed in Appendix I of CITES juncto Article XX of the GATT 1994. On another note, the Dispute Settlement Body may issue rulings with differing considerations. Nonetheless, the WTO Agreement and CITES are provisions established to provide adequate negotiation space for all their members. Thus, CITES and WTO member states should refrain from raising disputes over Indonesia’s investment measures if it restricts their economic interests and market access within Indonesia. Therefore, it is recommended that the WTO and CITES members recognize and appreciate the Negative Investment List policy in maintaining a balance between investment development and the protection of endangered fish species. Furthermore, stakeholders are urged to delve deeper into the principles and objectives of the WTO and CITES Agreements. Additionally, the members of the relevant organizations must collaborate in a spirit of solidarity and environmental awareness, prioritizing dialogue, consultation, and negotiation over dispute legal action that could complicate the situation. In this context, multilateral dialogue can serve as an effective platform for mediating diverse interests and seeking sustainable solutions that benefit the economy and the conservation of endangered fish species.

The Cooling-Off Period Under the International Investment Law Regime in the Indonesian Regulations Context Allagan, Tiurma M. Pitta; Simbolon, Putu George Matthew
Journal of Indonesian Legal Studies Vol. 9 No. 2 (2024): Reforming Legal Frameworks: Justice, Rights, and Innovation in Indonesia and Be
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jils.v9i2.19153

This article seeks to find methods for preventing the chilling effect of International Investment Law (“IIL”), according to the Indonesian legal system. The IIL has been known as one of the controversial legal regimes in international law, due to its main issue to balance the right of foreign investors and the sovereignty of the host state. From the host state’s point of view, an international arbitration tribunal award in favor of the foreign investors may cause a chilling effect on its right to regulate an investment measure. Since Indonesia is a country that is currently experiencing this effect, the article herein provides three discussions on how the chilling effect can be prevented. In providing these discussions, this article applies the doctrinal approach by taking into account the cases in hand, particularly where Indonesia is one of the parties. The first discussion provides explanations concerning the Tecmed v. Mexico case, which reflects how the absence of domestic law concerning cooling-off period may damage a state’s sovereignty. This discussion also provides findings in Amco v. Indonesia and Oleovest v. Indonesia, which shall be considered as cases where Indonesia applied its cooling-off period, despite its defeat in the Amco’s Tribunal. Furthermore, the second discussion explains how the cooling-off period and the exhaustion of local remedies are interconnected. This discussion shows the weakness within the Indonesian legal system and an example of the Indonesian government’s BITs, which consist of a cooling-off period, despite not transposed to its national law. Last but not least, the third discussion explores how a mediation and administrative court shall be utilized by Indonesia as a cooling-off period mechanism. This discussion also consists of recommendations on how Indonesia’s national investment law shall be amended in preventing the IIL chilling effect.

The International Centre for the Settlement of Investment Dispute (ICSID) Annulment Reform: a Lesson Learned From the World Trade Organization Struggle Simbolon, Putu George Matthew; Allagan, Tiurma Mangihut Pitta
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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This article expresses how ICSID can learn from the WTO’s current struggles due to the Appellate Body vacuum. To achieve that, this article consists of three discussions. The first discussions analyze the uncertainties caused by the vagueness of International Investment Law’s (IIL) absolute standards, due to the absence of a multilateral investment treaty. The second discussion expresses the elements of the Multi-Party Interim Arbitration Arrangement (MPIA Arrangement) that shall be taken into account by ICSID. The third discussion provides how the current ICSID annulment mechanism shall be reformed. Those issues are answered through doctrinal research in a prescriptive manner. In the first discussion, the IIL’s absolute standards consisting of Fair and Equitable Treatment (FET) and Full Protection and Security (FPS) have unclear parameters. Such vagueness is caused by the absence of a multilateral investment agreement. The second discussion explains that ICSID shall transpose the MPIA authority to change its member’s national law. This discussion also presents the consistent practice by the WTO Dispute Settlement Body based on the WTO's substantial rules, as a situation doesn’t exist in IIL. Finally, ICSID needs to expand its annulment scope by ensuring the disputing party’s substantial rights. This article expresses that while it is not the IIL’s duty to unify its material norms due to its dynamic nature, it has to ensure that the disputing parties’ substantial and procedural rights are reasonably taken into account.

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