Indonesian Journal of International Law
IJIL is intended to promote international law in Indonesia and to build the interest of scholars and decision-makers in the important role of international law in developing the rule-based international community. IJIL is intended to serve as an academic discussion forum on the development of international law in Indonesia and in the region. We welcome scholars and practitioners to contribute to IJIL in shaping the rule-based international community. IJIL offers current academic debates on the development of the field from the viewpoints of/or about Indonesia and other parts of Asia and the developing world at large. Each issue of IJIL accepts manuscripts on conceptual, theoretical, and practical topics published on a thematic basis. IJIL invites writers to their views that would strengthen the role and effectiveness of international law in an exploratory and non-descriptive style.
Articles
572 Documents
<![CDATA[Imposing Sanctions Against States and Violation Of Freedom Of Mass Media: The Case Of Iran ]]>
<![CDATA[Shahbazi, Aramesh]]>
<![CDATA[ Indonesian Journal of International Law ]]>
Publisher : <![CDATA[UI Scholars Hub ]]>
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<![CDATA[Thorough U.S. and E.U sanctions that ban the export of goods and services to Iran remain largely obsolete in recognizing how communications can benefit both the civilian population and serve broader Western States foreign policy goals against the mentioned state. Recent sanction against more than 20 TV and radio channels was indeed just an attempt by the West against Iranian media. It was a flagrant violation of freedom of speech and in contrast to the free flow of information by satellite providers as Eutelsat SA and Intelsat SA which stopped the broadcast of several Iranian satellite channels in October 2012. Because of the International recognition of dignity, equality and autonomy of all people that led to formulation of fundamental rights, particularly with regard to freedom of expression and access to information and by correlation existed between the right to express and freedom of all kinds of mass media; in this article we would examine the case of recent sanctions against Iran. It seems clear that the sanctions are both the violation of the human rights values and also contrary to the fundamental principles of democracy, International Co-operations and in contrast with object and purpose of International Telecommunication Union.]]>
<![CDATA[VIOLATIONS OF INTERNATIONAL LAW BY THE GOVERNMENT OF AUSTRALIA IN PRACTICE OF TURN BACK THE BOAT MANAGEMENT POLICY FOR ASYLUM SEEKERS ]]>
<![CDATA[Jufri, Modhy Mahardika]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Conflicts in several countries in Asia resulted in increasing number of refugees and asylum seekers. The need for protection and a decent life makes them willing to take any way to get protection in other countries, including by being illegal migrants. Australia, as a destination country for asylum seekers, imposed Operation Sovereign Borders by intercepting and returning ships carrying asylum seekers to protect the border while reducing the rate of illegal migrants coming into the country. In practice, this policy violates various provisions of international law, namely the principle of non-refoulement, human rights law, SAR obligation, the handling of migrant smuggling and violations of Indonesia sovereignty.]]>
<![CDATA[ILLEGAL, UNREPORTED AND UNREGULATED FISHING: THE IMPACTS AND POLICY FOR ITS COMPLETION IN COASTAL WEST OF SUMATERA ]]>
<![CDATA[Nova, Sri Asih Roza]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[For coastal States, IUU fishing is a classic problem. This issue has become a thorn in the flesh, despite being attempted various ways to overcome them, but until now it still has been resolved yet. IUU fishing action can cause many problems, such as increasing poverty of coastal communities, making bankruptcy of fisheries industry, damaging ecosystems and fish habitat in the ocean, disrupting stability of security coastal countries, damaging of diplomatic relations between the coastal States and so on. To that end, this article tries to analyze more deeply about IUU fishing and it’ problems in Indonesia]]>
<![CDATA[IMPACTS ON MARITIME TRADE WITH REGARD TO NAVIGATIONAL ROUTE ADJUSTMENTS IN AVOIDING CONFLICTS WITH MARINE PROTECTED AREAS: AN INSIGHT TO THE LAW AND POLICY ]]>
<![CDATA[Gunasekera, Dan Malika]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Establishing a Marine Protected Area (MPA) in a State’s maritime jurisdiction is a concept that became a much of practical approach alongside IUCN’s (International Union for Conservation of Nature) efforts for the protection of maritime environment. Although, the 3rd United Nations’ Conference on Law of the Sea (UNCLOS III) emphasized the importance of protecting seas and oceans as a State’s duty within its role as a custodian, this conceptual framework has not been well laid upon on its Members States beyond the conventional provisions enumerated in its entirety, and in Article 194.5 in particular. However, later development of the subject has alarmed the international community to a critical juncture where they have felt the importance of establishing MPAs in most sensitive sea areas by 2012. It is a well-known fact that shipping contributes heavily on issues pertaining to marine pollution in coastal waters though it is not the main cause taking into consideration of land-based sources. Nevertheless, shipping does contribute a considerable degree of hazard to living and non-living resources of the seas, especially considering its effects on endangered fish stocks. Unlike in the case of a global initiative, number of regional and unilateral means of proclaiming MPAs has taken place while enacting remarkable policies in the Mediterranean, Baltic, and North Sea areas as evident. In particular, Lord Donaldson’s Report in recommending Safer Ships, Cleaner Seas within the United Kingdom’s so-called MEHRA (Marine Environmental High Risk Areas) policy has brought into limelight some important steps that need to put in place with the use of the seas for shipping activities while appreciating IMO’s (International Maritime Organization) Resolution A.982(24) guidelines pertaining to Particularly Sensitive Sea Areas (PSSA) that focused on protecting maritime environment at the same time allowing shipping industry to continue without much interruptions. This piece of research will concentrate on the effects on maritime traffic within the aspects of marine life in the wake of proclaiming MPAs by States, with special attention to the proposals on shifting of traffic lanes for their survival. A Case Study will also be conducted in relation to the Cetaceans in the Southern Indian Ocean belt off Sri Lanka facing imminent threat of collisions with ships in searching for a balance between development and the environmental protection.]]>
<![CDATA[THE SOUTH CHINA SEA UNCLOS TRIBUNAL AWARD 2016: WHAT IT HAS CHANGED AND WHAT IT DOES MEAN TO INDONESIA ]]>
<![CDATA[Agusman, Damos Dumoli]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Since The Permanent Court of Arbitration issued its award on 12 July 2016 it have raised many controvertion. Almost all Submissions are decided in favour of the Philippines. The Award, as expected by many scholars, is not intended to solve the core dispute of the South China Sea ‘what maritime features belong to whom’, since the very nature of this kind of dispute is not under the Tribunal competence. The sovereignty over disputed features shall be left to the claimant States for the resolution. Nevertheless, the Tribunal Award has not only clarified the dispute but also partially solve the core dispute. The legal clarification is expected to contribute to future negotiations among the claimant States concerning the core (sovereignty) dispute. This Article attempts to identify and describe what has been changed by the Tribunal Rulings and what has been solved. The implication of the Ruling on Indonesia’s legal interest is also briefly discuss.]]>
<![CDATA[TERRORIST THREAT ON THE HIGH SEAS ANALYSIS OF SOME ASPECTS OF THE RIGHT OF VISIT AND SELF-DEFENCE ]]>
<![CDATA[Corthay, Eric]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Vessels of all sizes can be used in a number of ways by terrorists, they can utilize a vessel as a means, a weapon, a bomb, or as a disruption tool. When a terrorist attack happens, it is already too late, hence the critical importance for the international community to take timely, accurate and efficientex ante factosteps.Counter-terrorism measures implemented on the high seas to prevent maritime terrorist attacks from occurring are possible but limited by the international law and notably the law of the sea. To some extent, the law of the sea limits counter-terrorism efforts. On the high seas, enforcement measures against terrorists or terrorist-related activities on board foreign vessels are restricted by the principle of exclusivity of flag State jurisdiction (a). Nevertheless, the application of the principle can be derogated from by the right of visit which provides for, under certain conditions, some leeway to States in their fight against maritime terrorism (b). it is difficult to justify interdiction operations carried out in order to counter terrorist threats on the high seas by the right of self-defence. The first reason relates to the differences in rationale and legal regime between the force deployed during interdiction operations and the one used in self-defence (a); the second reason concerns the existence or not of a right of anticipatory self-defence (b).]]>
<![CDATA[TRANSFER PRICING: CHALLENGES AND SOLUTIONS WITHIN THE ASEAN REGIME ]]>
<![CDATA[Florence, Jane]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Transfer pricing has recently gained a prominent highlight in ASEAN countries. Eventhough transfer pricing policy has already been enacted by most of each ASEAN member states, there still exists loopholes – especially involving the transactions of cross border transfer prices. This research paper will discuss and further scrutinize the legal issues constituted by these loopholes, which affect both member states and Multi National Enterprises (“MNEs”) - particularly those associated with deficit tax revenue suffered by the member states, as a result of transfer pricing manipulations conducted by the MNEs. Transfer pricing concealed in the form of crossborder transactions; including but not limited to acquisitions, joint venture, and supply chains - impedes the movement of trade and capital, even catalyzes a tax distortion. Aside from ASEAN member states, MNEs are also being put at a disadvantage – to be subjected to a much greater burden on paying a higher cost of compliance, due to its responsibility to comply with more than one country’s jurisdiction and to have them imposed towards a susceptible double taxation.The result of this study encourages and essentially demonstrates the necessity of ASEAN to leverage a firm legal framework on transfer pricing that emphasizes on the manifestation of ‘arm’s length principle’ in all ASEAN countries’ jurisdictions.]]>
<![CDATA[THE URGENCY FOR REGIONAL INTEGRATION IN ACCORDANCE TO INVESTMENT RISK MANAGEMENT ]]>
<![CDATA[Yuniarti, Yuniarti]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Investment is an activity which is needed by every country, especially in development country. However, the investment activity itself also brings in some risk which is called as investment risk. These investment risks usually recognized to be covered by an investment agency to protect the investor. Multilateral investment guarantee agency (MIGA) is usually used to maintained and cover the loose of investor. But, actually among the investment risks which are identified by MIGA will only responsible for the market risk, meanwhile the biggest lost for investor also came from political and financial risks which have to be recognized in advanced. This is where the export credit agency will take place. Nevertheless, there are still many loops to be identified to determine the characteristic of export credit agency itself. To deal with those kinds of risks, a regional integration is needed to avoid an overlapping regulation among ASEAN Economic Communiy. Thus, will lead to a common perception on how to treat those risks and who will be responsible to cover it.]]>
<![CDATA[REGIONAL COOPERATION AND LEGAL PROTECTION TO INDONESIAN WOMEN MIGRANT WORKER ]]>
<![CDATA[Djelantik, Sukawarsini]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[The increasing number of Indonesian women migrant workers (IWMWs) started since 1997, and remain high after the global financial crisis in 2008. The impact for Indonesian economy is quite significant in terms of social and economy. Unemployment rate increased significantly as well as number of people living below poverty line. Social and family relations changed as women forced to work in public sectors to support family economy. Domestic job scarcity turned thousands of Indonesian women as family bread winner by working overseas. The above push factors are combines by increasing demands of IWMWs in the newly industrialized countries in Southeast Asia, especially Singapore and Malaysia. Geographic and cultural proximity also become reasons both countries are favorite destination to IMWs. As IMWs are mostly uneducated, so they left with no or little choices rather than working as domestic servant or other low income jobs known as 4D’s jobs (dirty, dangerous, difficult, demeaning) under poor working conditions. These marginal conditions were the result of weak bargaining position especially compared to other nationality, such as the Filipinos. Marginality also led to the emergence of the issue related to the violation of human and worker rights. To solve the problems, ASEAN countries need to cooperate and to build a solid legal system to protect IWMWs. The conflicting interests within ASEAN member countries between the receiving (Singapore, Malaysia) and sending (Indonesia, The Philippines, Thailand) have prevented the regional organization to produce binding legal products to protect its migrant workers. This research will answer questions: “what are solutions to increase IWMWs bargaining position in regional work force?” Other question would be: “How ASEAN solve regional news related migration issue”.]]>
<![CDATA[INTER REGIONAL GOVERNMENT COOPERATION:ADMINISTRATIVE LAW PERSPECTIVE ]]>
<![CDATA[Sujatmoko, Emanuel]]>;
<![CDATA[Wahyuni, Indria]]>;
<![CDATA[Abrianto, Bagus Oktavian]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[As it stated in the considering provision of Law number 32 year 2004 on Local government that “regional administration aimed to accelerate the realization of public welfare through improvement, services, empowerment, and community involvement, as well as enhancing regional competitiveness with underlined to the principles of democracy, equality, justice, privilege and specificity of a region within the system of the Republic of Indonesia”. To realize these goals, cooperation between local governments is needed, it is given that many regional affairs cannot be done by themselves unless in cooperation with other local governments. According to existing legal regulation, the inter-regional government cooperation is stated in various legal forms. Article 195 of Law Number 32 year 2004 choose Joint Decree as the legal form of inter-regional cooperation, while article 5 of the Government Regulation Number 50 year 2007 regarding Local Cooperation establish the cooperation in the form of Agreement. Besides those two legal form of inter-regional cooperation, Ministerial Regulation No. 22 of 2009 on the Technical procedure on inter-regional cooperation stipulate “memorandum of understanding” as form of understanding between two parties before the agreement is signed. Memorandum of understanding and agreement as the legal form of the inter-regional government cooperation is not recognized as legislation product of local government as it promulgated in Article 3 of Ministerial Regulation No. 53 of 2011 on the Establishment of the Regional Legislation Products. This paper aimed to identify the legal form of inter regional cooperation, such legal form is an important to bring legality principle for government action in creating cooperation.]]>
