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[Paradigm Shift in the Implementation of the Law of the Sea in Indonesia ]]>
<![CDATA[Purwaka, Tommy Hendra]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Indonesia has experienced four times paradigm shift in the implementation of the law of the sea since it declared its archipelagic state principle in 1957 through the 1957 Djuanda declaration up to now. The shifting of paradigms can be viewed as a progressive development on the implementation of the law of the sea in Indonesia. The first paradigm was ocean space paradigm which was clearly shown in the 1957 Djuanda declaration and along the way of the diplomacy efforts of Indonesia in the first (1958), the second (1960) and the third (1982) UNCLOS. The first paradigm showed how Indonesian people viewed ocean space of Indonesian archipelago as an integral part of national territory of Indonesia. The ocean space of Indonesian archipelago, however, should be filled with development activities as the implementation of the law of the sea. This has raised ocean development paradigm in 1985 as the second paradigm. Problems and constraints of ocean development faced by government of Indonesia which consists of central government, provincial government, regency government and municipal government have led to the maritime continent paradigm as the third paradigm in 1990s. The third paradigm viewed the ocean and land space of Indonesian archipelago as a continent. By thinking so, maritime jurisdictional problems raised by the involvement of central, provincial, regency and municipal governments in Indonesia’s ocean development will be able to be solved. As a matter of fact, the appearance of the third paradigm has complicated efforts of government in socializing the implementation of the law of the sea to all government levels and to Indonesian people. For this reason, government of Indonesia in the year of 2000 formulated national ocean policy. This policy combined ocean space, ocean development and maritime continent paradigms which can be viewed as the fourth paradigm. The fourth paradigm then can be named as ocean policy paradigm.]]>
<![CDATA[Do the European and Dutch rules on variable remuneration of financial institutions match and can remuneration be regulated on a European level? ]]>
<![CDATA[Kromwijk, D. E. M.]]>;
<![CDATA[Oostwouder, W. J.]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[The special committee of inquiry into the financial crisis (Tijdelijke commissie onderzoek financieel stelsel), better known as the De Wit Committee was in charge of investigating for the second chamber of the Dutch Parliament how the credit crisis had originated and how a future crisis could be prevented. In its report, the Committee paid special attention to the influence of remuneration on the crisis. In its final report, three of the twenty five recommendations concerned remuneration. Not only in the Netherlands was there attention for the incentives of remuneration and their role in the credit crisis, but also in the rest of the world. There are three different theories which try to explain the existence of variable remuneration: the agency theory, the market theory and the corporate governance theory. This article describes the European and Dutch rules on variable remuneration of executive board members and where possible also of employee remuneration. However, these rules are not always clear-cut. In this article, discrepancies between the European and the Dutch rules will be discussed. In this article, variable remuneration will thus be considered as a tool to solve the agency problem. The total remuneration (including the variable remuneration) can be seen as an instrument to attract and bind board members.]]>
<![CDATA[International Law Reform towards the Flood of Future Climate Change Refugees ]]>
<![CDATA[Athambawa, Mohamed Mowjoon]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[The popularity of the term “climate change refugees” has been dramatically increasing with the awareness and the disaster of the global warming. The prophecy for mass forced migrations as the consequence of climate change is deplorable. A scandalous statistics revealed that 200 million people would become climate change refugees by 2050. However there is a huge fortification gap in the international legal system which addresses the climate change refugees. Recently academics, lawyers and governments have identified the issues related to climate change refugees and realized the urgency of the formation of policies regarding the protection of the climate change refugees in remedying the plight of this category of the world population. As the first step in handling this dilemma, academics, lawyers, governments and all the stakeholders find it tricky to define the term climate change refugees. Because no one factor, event or process, inevitably results in forced migration and there are a wide range of variables contribute to the definition of the term “climate change refugees”. Different theorists have defined the term differently to distinguish a new category of displaced people. Forced migration and dislocation caused by environmental factors or natural disasters such as earthquakes and floods and man made disasters, such as war and industrial accidents have affected the universe since its existence. Before looking at the international legal constitution, it is necessary to look at the causes of environmentally displaced people in order to offer a complete protection for ‘climate change refugees’. This paper aims to identify who are the ‘climate change refugees’, the gaps in the international legal system which addresses the dilemma of the climate change refugees and proposes a fresh definition for the term “climate change refugees “ and a novel approach for dealing with the plight of this class of people in international legal system.]]>
<![CDATA[Odious Debts: Issues in Law and Politics ]]>
<![CDATA[Wong, Yvonne]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Odious sovereign contracts inhibit developing country growth. They cause money and resources to be improperly transferred from one country to an undeserving one. Think tanks and civil society actors have long suggested that Indonesia is plagued by a sizeable odious sovereign contract account. Policy makers and scholars continue to grapple with how the odious debts doctrine may operate in law to curb this important problem. Taking into account the lack of transparency in an odious contract setting, this paper proposes a new approach premised on principles of transparency, accountability and citizen participation in public contracts. In design, it proposes the following: 1) the creation of ex-ante obligations and a public website on which financiers can disclose the key terms of their contractual arrangements with a sovereign government. This website enables a financier to signal the nature of their engagement with a sovereign counterpart; 2) the creation of an ex-post tribunal, in which private citizens have standing, to adjudicate the odiousness of a disputed sovereign contract. In the tribunal’s deliberations, disclosure by a financier and compliance with ex-ante obligations weighs in favour of a presumption of legitimate contracting, whereas non-disclosure lends itself to a presumption of odiousness. This new approach has the right incentives for participation. It will revolutionize the currency of international law and international institutions, by giving the public a mechanism to eke out odiousness in transnational sovereign dealings. It can have important implications for Indonesia and more generally, the future of transnational trade and finance.]]>
<![CDATA[THE RIGHTS AND OBLIGATIONS OF THE STATE IN THE RESTORATION OF CULTURAL HERITAGE: A REVIEW ON INTERNATIONAL LAW AND THE PRACTICE OF INDONESIA ]]>
<![CDATA[Adinugraha, Antonius Satria]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[This article will focus on Indonesia’s effort based on international law to restore its cultural heritage. The problem about cultural heritage retention in international law is always related to two conflicting interests. On one hand, there are many developed states that try to keep abundant cultural heritages from all over the world. On the other hand, there are developing states that try to protect and even restore their cultural heritage during post-independence period. Indonesia is one of developing states that possess abundant cultural heritage. Unfortunately, Indonesia has not been able to fully maximize its right of restoration that is recognized in international law.]]>
<![CDATA[THE ROLE OF NGOS IN GIVING ASSISTANCE FOR EXTERNALAND INTERNAL REFUGEES AS A BOUNDARY VIOLATION OF A SOVEREIGN STATE ]]>
<![CDATA[Marliana, Marliana]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[An NGO (Non-Governmental Organization) is a legally constituted organization created by natural or legal persons that operates independently from any form of government, thus is a humanity-value-based organization that provides assistance in a form of charities and voluntary services. These kinds of assistance are much-needed relief for refugees in the countries of armed conflict or not. The most important source of protection for external refugees is Refugees Law while the internal refugees are protected by the National Law. The study presented in this paper is limited to assistance provided by NGOs to external and internal refugees in a country that is not in situations of armed conflict. These limits are given to address whether the role of NGOs providing assistance to refugees can be categorized as a violation of the limit state sovereignty. This level of understanding in the area of theoretical but can be implemented to legitimate the role of NGOs.]]>
<![CDATA[REVIEW OF INDONESIAN LEGAL ARRANGEMENT ON TUNA FISHERIES ]]>
<![CDATA[Ariadno, Melda Kamil]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[High seas fishery is very strategic to Indonesia mostly because of tuna fisheries in which Indonesia plays a quite substantive role as the major tuna exporting country in the world. International law provides comprehensive high seas management system through the adoption of various treaties and the establishment of regional fisheries management organizations (RFMOs). Challenge to Indonesian Government thus whether Indonesia could apply genuinely the high seas fishing management measures and comply with RFMOs of which Indonesia is member. Substantial rules and regulations have been adopted by Indonesia and yet the major question remains whether Indonesia is ready to exercise its obligations under high seas fisheries regime.]]>
<![CDATA[ECUADOR’S DECISION TO GRANT ASYLUM TO JULIAN ASSANGE : THE MANIFESTATION OF HUMAN SECURITY? ]]>
<![CDATA[Kusriyati, Atik]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Ecuador’s decision to grant asylum to Julian Assange (Australian citizen) on August 16, 2012 has caused several impacts. Julian Assange, the founder of WikiLeaks, was arrested in Britain in connection with a Swedish investigation into accusations of sexual offenses. But United States Law enforcement official said that the fact that he was in custody did not affect their deliberations about whether he might be charged in this country in connection with publication of leaked government documents. Being disappointed with the decission, the British authorities sent a written notice to the Ecuador’s Embassy in London that they would assault the Embassy if Assange was not handed over. The letter has led to tense diplomatic relations between two countries. Facing the difficult situation, UNASUR (The Union of South America Nations) held a Foreign Ministers Meeting (FMM) after the President of Ecuador granted the asylum. The meeting produced an agreed document that support Ecuador’s decision and encourage all parties to have continous negotiation to find mutually acceptable solutions based on good neighbour principles.]]>
<![CDATA[THE DISPARITY IN NATIONAL EMISSIONS: THE ROLE OF NATIONAL POLICY TO MITIGATE CLIMATE CHANGE FREE RIDER ]]>
<![CDATA[Bram, Deni]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[It is generally accepted within the scholarly international community that global climate change is occurring and is due at least in part to anthropogenic activity. Strategies to mitigate climate change harms and adapts to inevitable climate change-induced consequences are influencing legal, political, and human rights frameworks. One of the interesting study is the study to test the existences of justice aspect in the regulation for international as well as for national nowadays in overcome the climate change problem. The research focuses on some main points, which consist of several problems. First, to perform assessments about the importance of climate justice contexts in the spirit of climate change prevention; Secondly, to search for the basic understanding for the interests of developing countries to be treated equitably in the climate change regime; Lastly, to search for factual condition on free rider from the emissions quota that Indonesia received in International climate change system.]]>
<![CDATA[INTERNATIONAL HUMAN RIGHTS PROTECTION: CHALLENGES TO STATE’S SOVEREIGNTY IN A DEMOCRATIC ERA ]]>
<![CDATA[Aqimuddin, Eka An]]>
<![CDATA[ Indonesian Journal of International Law ]]>
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<![CDATA[Human right violations are difficult to put to an end since in many cases the state itself is the one violating their citizen’s rights. At this point, the international community cannot intervene due to the state’s sovereignty principle. State’s sovereignty principle is one of the international laws primary principles. However, in terms of human right protections, the state’s sovereignty principle usually hinders international communities from giving their assistance in which could be seen as an intervention to the state’s sovereignty. Intervention in order to protect human rights if conducted within certain boundaries is in accordance with the UN charter provisions. Nonetheless, decision-making indecisiveness within the UN causes failure to protect the human rights. Therefore, the state’s sovereignty principle as a concept should be reviewed. Furthermore, reform is necessary at the institutional level of the UN so that dilatory decision-making can be avoided.]]>
