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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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Addressing The Principle and Challenges of Enforcement and Prosecution Under Universal Jurisdiction: Charting New Pathways for International Justice Nnawulezi, Uche; Nwaechefu, Hilary; Magashi, Salim Bashir
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

Remarkably, the principle of universal jurisdiction is increasingly gaining traction in the international justice system as a key aspect of the prosecution of crime globally. Driven primarily by efforts to combat crime, this paper examined the relevance of universal jurisdiction in order to determine its adequacy as a system of international justice. Contextually, the principle of universal jurisdiction emerged as a supplemental component of the international justice system. This paper adopts the doctrinal approach by identifying and analyzing the relevant provisions and challenges of universal jurisdiction. It argues that if regular enforcement is a goal of the emerging international justice system, then universal jurisdiction will be an essential part of the system. The paper found out that the application of universal jurisdiction is saddled with challenges, not because of its reliance on national authorities to enforce international norms but due to the reluctance of those authorities to play this role. It concludes that universal jurisdiction will not become a reliable pillar of the international rule of law until these challenges are properly addressed.
Competent Forum and Applicable Law in Personal Data Protection with a Foreign Element Adhiwisaksana, Muhammad Faqih; Allagan, Tiurma Mangihut Pitta
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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This research analyses on personal data protection with a foreign element as a private international law issue, focusing on competent forum and applicable law. The author uses a juridical-normative research method with literature studies to explain the relevant private international law principles, as well as Indonesian laws and regulations surrounding competent forum and applicable law regarding competent forum and applicable law on personal data protection with a foreign element. The study found that various private international law principles may be used to determine the applicable law in personal data protection with a foreign element dispute, such as nationality, place where the tort occurred, or center of gravity. Indonesian courts are also competent to examine personal data protection with a foreign element case under Indonesian law. This study also elaborates practical implementation personal data protection with a foreign element, in particular on the competent forum and applicable law, as shown in the businesses Intercompany Agreement on Data Processing by X group company and in a cross-border acquisition transaction.
Behind the scenes of controversial International Commercial Arbitration: Case Study of Heirs to the Sultanate of Sulu v. Malaysia Ong, Tze Chin; Wen, James Ding Tse
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

Recently, an ad hoc arbitration final award of US$14.92 billion (approximately RM62.59 billion) in favour of the heirs of the 19th-century sultanate, the late Sultan of Sulu, Sultan Jamalul Kiram II against Malaysia (the “Award”) that was handed down by a sole arbitrator had created much discussion in the international public and private law arena. Following the issuance of the n Award, Malaysia challenged the Award in the Paris Court of Appeal and successfully stayed the Award’s enforcement in France on July 12. During the same time, on July 11, two Luxembourg-registered subsidiaries of the Malaysian state oil company Petronas were served with ‘saisie-arret’ by bailiffs, acting on behalf of the heirs to the Sultanate of Sulu, pending any appeal by Petronas against the seizure. Putting aside the international law discussion, this paper focuses on the international private law setting of international commercial arbitration and its significance to the case study. This paper concentrates on three issues derived from international commercial arbitration regarding the case study of the Award, its longform title “Nurhima Kiram Fornan, Fuad A Kiram, Sheramar T Kiram, Permaisuli Kiram-Guerzon, Taj-Mahal Kiram-Tarsum Nuqui, Ahmad Narzad Kiram Sampang, Jenny Ka Sampang and Widz-Raunda Kiram Sampang v Malaysia”, namely, the arbitration clause and seat, the issue of third-party funding and ethical international commercial arbitration. This paper employed the qualitative content analysis research method in analysing the issues related to international commercial arbitration using primary and secondary sources. Among the primary sources used in this paper include case law, arbitration award, agreement, government gazettes, memoranda, the New York Convention and UNIDROIT principles. The secondary sources include articles, books, newspaper reports, and other secondary sources available online and offline. The findings of the article conclude that there are divergences in the principles applied in the Award regarding arbitration clause and seat, that the case is motivated by third-party funding which calls for further ethical considerations and discussion in international commercial arbitration.
Indonesian Compliance with Tripartite Agreement in Controlling Marine Environmental Pollution in The Malacca Strait Tarigan, Vita Cita Emia; Nasution, Akmal Handi Ansari; Ekaputra, Mohammad; Saputri, Rizki Nanda
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

Indonesia bears interest in the Malacca strait as one of its stakeholders in its effort on maritime navigational safety and environment in navigational safety and environment. Its efforts are fundamental in controlling, preventing, and recovering pollution from vessels. Referring to the United Nations Convention on Law of the Sea (UNCLOS) 1982, Indonesian contribution to controlling marine life pollution is vital. Therefore, Indonesia signed a tripartite agreement with Malaysia and Singapore (Agreement on Safety of Navigation in the Straits of Malacca and Singapore 1977). The Tripartite Agreement needs to be used as a reference in making regulations in Indonesia and implemented as a proof of Indonesia's compliance with the Tripartite Agreement. Therefore, the purpose of this research is to understand Indonesia's conformity to the mentioned agreement in controlling marine environment pollution in the Strait of Malacca. It utilizes literature and case studies such as books, notes, and previous research. The theory that we use is the compliance theory and combined theory for elaborating the obedience of Indonesia to the agreement itself. It can be concluded that Indonesia has complied with the Tripartite Agreement by putting together various laws and regulations and other regulations and forming a structure to protect the sea. However, in practice, it still requires some improvement.
Recognition and Enforcement of Foreign Court Judgments in Civil and Commercial Matters: An Indonesian Private International Law Perspective Himmah, Dinda Rizqiyatul; Wibisono, Justin Gabriel
Indonesian Journal of International Law
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Abstract

One of the primary emphases of private international law is the recognition and enforcement of foreign judgments. It is believed as one of the private international law pillars which can attain the fulfillment of rights and obligations. For instance, in the realm of cross-border commercial transactions which enable contractual parties to settle their dispute before the foreign courts or other international dispute settlement bodies as they have agreed. Pertaining to the situation involving foreign courts, the recognition and enforcement of the delivered foreign judgments have been frequently challenging. As there are numerous discussions towards the recognition and enforcement of foreign arbitral awards, this article examines the development of such legal issues with a broader scope including the legal issue of recognition and enforcement of foreign court judgments as well. On the basis of various laws in different levels from national law to international law, this article also examines the perspective of Indonesian Private International Law towards the legal issue of recognition and enforcement of foreign court judgments. On the basis of both legal and economic rationales, it is found that states have been taking the issue of recognition and enforcement of foreign court judgments into consideration.
The Analysis of Transitional Justice Initiatives and The Flaw of Prosecution on The Past Human Rights Violation in Indonesia (Tanjung Priok Case) Saibih, Junaedi; Danil, Elwi; Warman, Kurnia; Mulyati, Nani
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The political transition from the New Order era to Reform Era has initiated questions to the transitional government about transitional justice initiatives. This chapter discusses the theoretical perspectives on transitional justice that have been developed by many scholars in their publications. Besides the theoretical perspectives about transitional justice, this chapter also discusses transitional justice elements, the forms, and the institution of justice in transitional regimes. The discussion in this chapter is important as a measurement of the transitional government initiatives to reach political stability and reconciling with the past. The explanation about the forms and the element of justice then be discussed comprehensively in part about the government initiatives, in addition to reconciling with the past violation and creating “Victims-Centred Transitional Justice”. This study specifically raises aspiration or expectation from the victims on the transitional justice policy made by the transitional government. The room for victims to speaks their version comparing to many versions on the incident will be narrated in the specific part on the incidents (Tanjung Priok Incident 1984) as well as reminiscing the victims’ experiences with the violations of human rights when the incident occurred. After discussing the incident, then next part shall narrate about the government policy in settling past severe violation of human rights and the effort of victim’s supporters in the House of Representatives before promulgating the Law on Human Rights Court. The later part is very important to be discussed in formulating a conclusion to half-hearted transitional justice in Indonesia.
Natuna Waters: Explaining a Flashpoint between Indonesia and China Agusman, Damos Dumoli
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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Abstract The Natuna waters have recently been a flashpoint between China and Indonesia as a result of China's vague claim of a nine dash line (9DL). It has caused a number of incidents and standoffs between legal enforcement agencies of both countries and sparked a diplomatic row. This article explores how the ambiguous claim of a historic right/9DL was gradually introduced by China and then coercively applied in the Natuna waters. It also attempts to identify what China actually claims in the waters. It will then examine how Indonesia under the Jokowi administration responds to the claims, and elaborate what measures Indonesia has taken and will continue to take in order to protect its maritime interests against China’s 9DL claim. It concludes that Indonesia regards China’s illegal claim as a matter of principle and thus takes an uncompromising stand.
The Investor – State Contract Making Case for Renegotiation of the Original Contract Bordoloi, Animesh Anand
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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Abstract

Most Investor-State projects involve significant capital investment, while recognizing the existence of acute risk factors. After making such investments, investors expect fiscal, regulatory, and political conditions to remain stable or favorable throughout the project's duration. However, due to the long-term nature of agreements, there have historically been significant disputes over differences in expectations versus reality. States may rapidly evolve their economies and interests, sometimes pushing for new deals seen as fairer to investors with changing circumstances. Stabilization clauses have traditionally been used by investors to protect their interests, but over time, such measures have weakened as they are perceived as a threat to the State's sovereignty. As an alternative, renegotiation is being considered as a more mutually inclusive process. This article explores the significance of renegotiation, its evolution, and the issues that need addressing for it to be an acceptable solution for all stakeholders.
Impact of The Enforcement of ASEAN Economic Community on Policy and Strategy of Sea Transportation Development in Indonesia Aflah, Aflah; Purba, Hasim; Suhaidi, Suhaidi; Siregar, Mahmul
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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This study aimed to determine the impact of the ASEAN Economic Community (AEC) on the national shipping industry highly imbalanced with relevant business policies. The AEC agreement is also expected to positively affect the shipping industry while controlling domestic and competing in international activities. In this study, a normative method was used, with the collection of data carried out through literature studies. The Maritime Vision of Indonesia, which is the Policy Direction and Strategy for The Development of Marine Transportation, was also implemented to motivate the country toward becoming the World Maritime Axis. This emphasized becoming a developed, sovereign, independent, and strong maritime country, which was able to positively contribute to regional and global security and peace, according to national interests. Furthermore, the Marine Policy of Indonesia was prepared regarding the Development Vision of the country, as stated in Law Number 17 of 2007 concerning the National Long-Term Development Plan 2005-2025 and Law Number 32 of 2014 emphasizing Marine Affairs. The results showed that the implementation of ASSM (ASEAN Shipping Single Market) impacted the national shipping industry, due to increasingly open competition. Based on the AEC era, Indonesia should be internally and externally ready, for the effective and efficient prioritization of shipping transportation activities. The country should also be ready to compete nationally and internationally, specifically in sea transportation, as one of the important components of the national shipping sector.
Dumping Practices and Competition as Double-edged Sword: Indonesia Practices Sukarmi, Sukarmi; Susanto, Fransiska Ayulistya
Indonesian Journal of International Law Vol. 20, No. 4
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Dumping practices are typically related to business competition, namely predatory pricing. The issue under consideration is how the practice of dumping is viewed through the perspectives of business competition law and international trade law, as well as how the Indonesian Commission for the Supervision of Business Competition (KPPU) handles this issue. This article examines and analyzes the relationship between dumping behavior and business competition, as well as the authority with which institutions will handle predatory pricing caused by dumping behavior. The results of the analysis show that dumping is a violation of international trade law under the World Trade Organization (WTO). If the Indonesian Anti-Dumping Committee (KADI) discovers dumping practices, the party will be subject to sanctions in the form of Anti-Dumping Import Duty (BMAD). Aside from that, selling below market prices or carrying out predatory pricing will hinder fair competition from the perspective of competition law. Dumping practices benefit consumers in the short term but harm consumers and similar competing industries in the long term. If the aim is to eliminate competitors, of course, this is unhealthy competition and falls under the supervision and authority of KPPU to enforce the law. This article only focusses on the when the dumping practices can become the predatory pricing on competition law perspective and who will handle the case.

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