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Arie Afriansyah
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INDONESIA
Indonesian Journal of International Law
Published by Universitas Indonesia
ISSN : 16935594     EISSN : 23565527     DOI : https://doi.org/10.17304
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice Social Sciences
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.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 572 Documents
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The Dispute Settlement System of Investment in The ASEAN Comprehensive Investment Agreement (ACIA) Framework and The Implications for Indonesia Delfiyanti, Delfiyanti
Indonesian Journal of International Law Vol. 19, No. 1
Publisher : UI Scholars Hub

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Abstract

In order to implement the ASEAN single market on free flow of investment in the region, the delegations of ASEAN member states signed the ASEAN Comprehensive Investment Agreement (ACIA) on February 26th, 2009 in Cha-am, Thailand. Based on Article 1 (a) and Article 2 of the ACIA Agreement on the objectives of ACIA formation; the legal arrangements for foreign direct investment in this Agreement adhere to an investment regime—“a Free and Open Investment Regime” to achieve the ultimate purpose of economic integration in the ASEAN Economic Community. By implication of the Agreement, Indonesia should attempt to complement the investment legal arrangements in accordance with ACIA regulation. Based on analysis result of Act No. 25 of 2007 on Investment any several provisions are in line with the ACIA although any differences and improvement required. As regard the dispute settlement, both through the ACIA Agreement and the Indonesian Investment Law, there are 2 mechanism channels, the non-legal route (conciliation/negotiation) and the legal (court/arbitration). The option of dispute settlement by the mechanism depends on the concerned parties. Obviously, both of them regulate the legal protection for investors and national security where they belong.
Ensuring the Right of the Child in the Boko Haram Insurgency: The Province of UNICEF’s Complementary Mandate Under International Law Adegbite, Olusola Babatunde
Indonesian Journal of International Law Vol. 19, No. 1
Publisher : UI Scholars Hub

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Abstract

The need to manage conflict-related humanitarian conditions is the basis of intervention by international humanitarian organizations. Chief amongst these agencies is the United Nations International Children’s Emergency Fund (UNICEF), whose work is primarily about protecting children in armed conflicts. This agency has maintained a robust response to the humanitarian crisis in the Boko Haram insurgency, though its effort has not been without controversies. In 2018, it was suspended by the Nigerian Military on the allegation that it was working for the enemy side, an action which attracted widespread condemnation, as it was seen as an attempt by the government to give the agency a bad name. This has again thrown up the question of whether agencies such as UNICEF have the mandate ascribed to them under international law, and whether countries such as Nigeria, having signed up to this mandate, could refuse to live up to their international obligation. This article examines the framework of humanitarian intervention by UNICEF under international law, and what Nigeria’s role ought to be in this respect. It makes the argument that UNICEF’s intervention in the insurgency is not that of a meddlesome interloper, but part of an international legal framework for the protection of children’s rights in armed conflicts, which Nigeria has signed to, and which it must fulfil. Supporting UNICEF is in the best interest of the country, but doing otherwise could be inimical not just to the wellbeing of children in the insurgency, but also the country’s commitments under international law.
Decolonizing the Environment: Third World Approaches to the Planetary Crisis Khoday, Kishan
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The colonial process transformed the landscape of the Earth with devastating consequence for communities and ecosystems. It also set the foundations of the planetary crisis that we see today. Using a TWAIL approach, this article argues for the relevance of colonial and post-colonial analysis in combatting today’s planetary crisis and advancing a more effective form of global environmental governance. Today’s global order of multilateral agreements is increasingly under criticism, ineffective in combating the planetary crisis and in halting the disproportionate impact of ecological change experienced across the global South. A TWAIL lens helps to understand the root causes of today’s crisis in the colonial past, and to embrace calls by vulnerable communities across the South for equity and justice in environmental decision-making. It brings clarity to the socio-political context from which today’s planetary crisis arose, ways colonial and post-colonial legacies continue to shape today’s multilateral frameworks, and why, despite an array of well-crafted global regimes, the planetary crisis continues to escalate.
Lack of ‘Will’ or ‘Options’: A Study on the International Court of Justice’s Tryst With Racial Discrimination Alexander, Atul
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The practice of racial discrimination is detrimental to the international community’s interest. Therefore, efforts at the national and international levels to curb racial discrimination must be undertaken. The Convention on the Elimination of the Racial Discrimination (ICERD), 1969, is one such effort to curb the practice of racial discrimination. The mandate to interpret and settle disputes pertaining to racial discrimination is upon the Committee on the Elimination of Racial Discrimination (CERD). However, the CERD is endowed with functions with a limited mandate; therefore, since 2010, States have been increasingly taking recourse to inter-state dispute settlement mechanisms, i.e., the International Court of Justice (ICJ) on racial discrimination. To date, the ICJ has confronted ICERD in four contentious cases. Most of the previous research on the ICERD vis-à-vis ICJ relates to the discrete cases; however, this paper comprehensively evaluates the contribution of ICJ in interpreting the ICERD (in contentious cases). Albeit racial discrimination is one of the most heinous crimes that shakes the conscience of humanity, it is observed that the ICJ has offered chequered and circumscribed interpretation on ICERD, thus departing from ensuring ‘legal certainty’. This study also assumes significance as it sketches the ICJ’s attitude in dealing with human rights matters, transcending its pure traditional state-centric mandate.
The Peculiar Double-Consciousness of TWAIL Al Attar, Mohsen
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

Shunning the Eurocentrism that colours much mainstream scholarship, TWAIL has centred in international legal scholarship the views of peoples historically marginalised in the imperial-colonial process. In a single generation, its interventions have shifted perceptions of international law across the academy, forcing scholars to account for the partialities of our purportedly universal international legal regime. Yet, despite embracing iconoclasm and critique, TWAIL is also denoted by a formalist streak. Many of its scholars are committed to the regime, towing an orthodox line that appears counter-intuitive, even inconsistent. In this article, I use WEB Du Bois’ concept of double-consciousness to explain the tension that grips TWAIL scholars. The formerly colonised are caught in a loop: they aspire to belong to the academy—and to the world—yet are cognisant of the discord between their emancipatory hope for international law and its predatory reality. Du Bois offers a way forward, beseeching the colonised to fuse their clashing worldviews to produce a radical consciousness capable of advancing the cause of human freedom.
Export Restrictions on COVID-19 Vaccines: What Developing Countries Can Do Under the WTO Law? Widiatedja, Ngurah Parikesit
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The COVID-19 pandemic has wreaked havoc on the global economy and trade, since production and consumption have been reduced around the world. The production and distribution of COVID-19 Vaccines caused unequal distribution as some developed countries have imposed export restrictions. As a result, wealthier countries are resuming normalcy, while the rest of the world continues to struggle to vaccinate its citizens. Article XI(2)(a) of The General Agreement on Tariffs and Trade exceptions allow members the legal ability to impose export restrictions if they meet specific criteria: they must be temporary, confined to foodstuffs and vital products, and enforced in the context of preventing and easing critical shortages. Export restrictions on COVID-19 vaccine applied by developed countries appear to meet these criteria, given that all of these countries are facing a shortage, and the restrictions are being placed to alleviate the shortage. Responding to this unpleasant measure, this article finds that developing countries may employ two available alternative measures, namely compulsory licensing and security exceptions under the Agreement on Trade-Related Aspects of Intellectual Property Rights to protest unequal distribution of the vaccine around the world.
The Role of Civil Society Organisations in Asset Recovery Maguchu, Prosper; Ghozi, Ahmad
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

In Zimbabwe, civil society organisations (CSOs) have played a significant role in documenting cases of corruption and mismanagement that have deprived Zimbabweans of their basic human rights. This work can facilitate asset recovery efforts, which is a high priority for the Government of Zimbabwe. The country continues to face enormous challenges despite the political changes that have occurred in recent years. This makes the contribution of civil society all the more important. In particular, CSOs can play a role in raising public awareness, research, advocacy, case management and monitoring returned assets. Hence, CSOs should not only be encouraged but also equipped to work with government and state institutions: providing information, increasing accountability and building political will. The government and third sector can achieve far more working cooperatively than either could alone. To that end, Transparency International Zimbabwe seeks to provide CSOs with a platform to effectively engage with and support the recovery of stolen assets within and beyond Zimbabwe’s borders. This paper will encourage CSOs to explore opportunities to effectively engage in the asset recovery process, including in partnership with other actors, so that they can work towards returning the assets to Zimbabweans in desperate need. As the first of its kind, this paper is not intended to be exhaustive, but rather provides an introductory overview to CSOs’ engagement with asset recovery and identifies their specific strengths. It also analyses CSOs’ asset recovery networks, which will allow Transparency International Zimbabwe to understand who is already working with whom so that it can build on this knowledge for future collaborations. In terms of scope, this paper discusses asset recovery in the context of corruption-related offences, with an emphasis on cases involving senior public officials.
Communal Rights as the Hegemony in Third World Regime: An Indonesian Perspective Putri, Yunita Maya; Putri, Ria Wierma; Tisnanta, HS
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The birth of international law was a direct result of the emergence of civilized and independent states in the sixteenth century in Europe, known as the Enlightenment. So the need for a series of rules to regulate legal relations between these countries. However, until now, Asian and African countries are still fighting for their independence until new problems arise. The polarization of the international community is divided into two, namely developed and developing countries. Where international law is dominated by developed countries with European and American values and does not accommodate the values of local wisdom from developing countries that were former colonies. Indonesia as a developing country must be able to take appropriate steps to anticipate all changes and developments as well as global trends so that national goals can be achieved. One of the important steps taken is to promote and protect their communal rights. The concept of recognizing communal rights originating from developed countries and being accommodated in various international agreements such as The General Agreement on Tariffs and Trade (GATT) and Trade Related Aspects of Intellectual Property Rights (TRIPs) which are more in favor of the economic interests and investment of countries progress without paying attention to the disparity in the ability to master knowledge, technology, and information as intangible capital, especially communal rights. The monopoly of intangible capital by developed countries is not in favor of developing countries as owners of communal wealth that should receive appreciation and recognition, as well as economic benefits for developing countries. Indonesia as a developing country rich in natural resources, arts, and culture has various communal assets that require legal recognition and protection and are recognized internationally. Communal rights that are currently developing in Indonesia are a response to the hegemony of communal wealth controlled by developed countries to maintain national identity. The dynamics of the global economy that is driven by knowledge, creativity and technology must not ignore communal rights as part of the domestic economic system. Instead of being skeptical about this, Indonesia as a developing country must determine a strategy to utilize communal rights as intangible capital in economic development. By using a literature study, this paper describes the advantages and challenges in protecting communal rights and their benefits in Indonesia. Communal intellectual property is a form of recognition for the traditional culture of the Indonesian people to be preserved and generate economic benefits for the entire custodial community. In addition, communal intellectual property is protected by the state with unlimited protection which will provide welfare for indigenous peoples. However, there are still some shortcomings in the protection of communal intellectual property because there is still no written and systematic inventory of the traditional cultures produced by indigenous peoples, as well as the registration model and benefit sharing by the state to the custodian community. Government policies are needed to gradually provide effective and efficient protection in the form of defensive protection and the sui generis law.
Where Kindness Is Calculated: Refugee Regimes in South Asia Sarker, Shuvro Prosun; Bhattacharya, Shreyasi
Indonesian Journal of International Law Vol. 19, No. 3
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Abstract

South Asia, as part of SAARC treaty, comprising of nations such as Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka is not a part of any common system of governance in protecting refugee. These nations have developed their own preference of protection through their practices coupled with mysterious unwillingness to accept international obligations and responsibilities while choosing certain refugee groups to welcome and certain to refuse. Based on this, the article starts with the proposition that this kind of a preferential protection practice that these States have adopted largely, refers to a regime of calculated kindness that labelled refugee status and protection to ambiguity. The article investigates how the major refugee groups have been received in these countries and tries to unearth if there exists a common pattern in the State practices that can characterise a South Asian approach to refugee protection. The article results in establishing the proposition that the ‘kindness’ is calculated based on an ad-hoc measures of refugee protection based around religion, language and culture. Proceeding from this proposition, the article emphasises the need for a uniform refugee protection regime common or unique to all countries in South Asia for regulating refugee movements across South Asia.
Traditional Knowledge and TWAIL Deshpande, Gunjan
Indonesian Journal of International Law Vol. 19, No. 3
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Abstract

Traditional Knowledge (TK) is a deep-rooted notion in the Indian culture, it is the knowledge that has been passed on for centuries and is governed by the traditional customary laws. It applies to everything from food storage, agriculture to medicine to the preservation of the environment. TK are protected by national or regional laws that provide limited protection. There have been various instances where Indian TK was patented outside India some of the examples are Turmeric, Amla, and Neem. TK is the base of modern science and technology, as it is derived from a strong cultural heritage that is vital for any country but it lacks the footing in urban jungles and that directs results in absence or lack of due credit. Today protection of TK on a global scale is being demanded by Third World countries. This paper will unfold various aspects of legal and economic dimensions for the protection of TK. The paper will analyze the paradox that TK is more likely to be relevant to the global south if the regions don’t find innovative ways of commercializing these products. Failure to do this will convert TK from an asset to a liability of the global south. The key reason for the need for international protection is that the rights allocated to the inventions are based on TK and Genetic resources. The author will explore the aspects of place-based IP-intensive goods in global consumer markets. The author will emphasize the idea that TK is the heritage of various cultures and they need to be respected and protected throughout the world and issues regarding access and use can be resolved through mutually agreed terms.

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