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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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Victim Protection and The Dynamic Situation of Human Trafficking: Indonesia Experience Naibaho, Nathalina
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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Abstract

Human trafficking is a global issue. It can arise in the context of national and/or transnational acts and are regulated by national and transnational criminal law mechanisms. However, in trafficking in person cases there are links between human trafficking and other related crimes such as drugs trafficking. Meanwhile, Indonesia has enacted laws which provide mandatory protection for victims of human trafficking. It also has mandatory drug laws which, in some cases, subject to the death penalty. This legislative conflict together with investigative and prosecutorial failure risks the conviction of human trafficked victims who are used as drug dealers in organized crime activities. The drugs offenders will sentence under the criminal law if the act of the offender fit with the element of crime under narcotic law. This paper will examine the intersections between victimology and Indonesian laws which the recent cases before Indonesian courts have demonstrated that enacted laws are not being applied properly which allows for the protection of trafficked victims forced into the drug trafficking. Dynamic situation that has been the highlight is a principle which is contained within Indonesian legislation, and which reflects the emerging norm of non-prosecution of victims in international legal discourse. This article suggests a new approach to statutory interpretation with the need for effective mechanisms that, if adopted, will enable Indonesia to lead a new approach to victim protection.
Safeguarding Sovereignty: Indonesia's Solution to the Raw Materials Case in WTO Zaki, Muhammad Reza Syariffudin; Armanto, Muhammad Haykal; Albar, Rafsi Azzam Hibatullah; Koos, Stefan
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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Abstract

Indonesia’s export restriction on raw materials was based upon Law No. 4 of 2009 on Mineral and Coal Mining as amended with Law No. 3 of 2020. January 1st of 2020 marks nickel to be the first mineral to be affected by the raw mineral export ban policy. This measure has sparked a controversy in the international community, as the European Union deemed that this measure is against the principles of the World Trade Organization of nonrestrictive trade policies. This phenomenon was brought to the Dispute Settlement Body of the WTO as DS592 – Indonesia Measures Relating to Raw Materials. Although the Indonesian government has lost the case against the European Union, the Indonesian government is adamant on proceeding with this measure to further develop the downstream industry of raw minerals in Indonesia. Since then, Indonesia has filed the appeal for the panel report of the DS592 case and shows no sign of stopping the nationwide export ban on raw minerals, with bauxite, copper, and tin on the horizon. Therefore, the invocation of Article XXI GATT could be used as a strategy to avoid scrutiny from the international community, by invoking a national security exception to implement measures inconsistent to the principles of the WTO. Thus, the Indonesian government is able to protect and secure their nation’s fundamental principal as a sovereign nation with control over its raw materials.
Policy Formulation for Managing Ship-generated Plastic Waste via Improved Port Reception Facility Governance Kurniaty, Rika; Widagdo, Setyo; Rachmawati Madjid, Yasniar; Reyhan Al Kharji, Rafly; Imanda Putri, Arsella
Indonesian Journal of International Law Vol. 20, No. 4
Publisher : UI Scholars Hub

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Abstract

Plastic is a significant portion of marine debris, ranging from 60% to 80%. Historically, ships have been a major contributor to plastic pollution in the ocean, followed by Indonesia, which is acknowledged as the second-largest originator. Global efforts to combat marine pollution, including plastic waste, have been undertaken through international agreements like MARPOL Annex V. This agreement has mandated countries to establish suitable port facilities for ship-generated wastes. However, an assessment of Indonesian ports indicated insufficient compliance with environmental management standards, particularly in waste handling. The current direct fee policy for waste disposal may disincentivize proper waste disposal by ship operators. This research examined and analyzed standards for adequate port waste reception facilities and explored the potential of implementing an indirect fee policy to promote responsible waste disposal. The research also provided recommendations for enhancing plastic waste management in accordance with international treaties ratified by the Indonesian government. The result showed that although existing national legal instruments indirectly address plastic waste concerns, specific regulations and updates are needed. Furthermore, the introduction of indirect fee policies for waste disposal at ports, coupled with stronger law enforcement, can incentivize proper waste management practices. These policies offered a promising strategy to address the challenges posed by plastic waste and contribute to sustainable environmental practices. By adopting these policies, countries were able to take a proactive approach to mitigating plastic pollution and protecting marine ecosystems.
Examining the Negotiation Model of the Disputed Boundary Between Indonesia and Malaysia on Sebatik Island Nurdin, Amin; Atmoredjo, Sudjito; Arsana, I Made Andi
Indonesian Journal of International Law
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Abstract

Sebatik Island is a disputed territory between Indonesia and Malaysia, known as one of the Outstanding Boundary Problems (OBP). The island was divided into two parts by the Dutch and British, based on the 1891 Boundary Convention and the 1915 Boundary Agreement. In 2019, after a long negotiation process, the two countries agreed to re-demarcate the boundary line by planting new boundary pillars. The results of the re-demarcation have not yet been agreed upon by Indonesia and Malaysia, resulting in unclear boundaries of sovereignty and jurisdiction. This study aims to examine the negotiation model of dispute resolution on Sebatik Island. The research methodology employed is doctrinal or normative legal research, which uses both primary and secondary legal data as sources, such as regulations, treaties, court decisions, and doctrines. The study found that the current bottom-up negotiation model has caused delays in reaching an agreement on Sebatik Island. To speed up the settlement of the dispute, it is recommended to modify the model to a top-down approach with a back-to-back or simultaneous mechanism.
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
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Abstract

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.
Common Heritage of Mankind Beyond Treaty Provisions: Customary or General Principle? Merdekawati, Agustina; Triatmodjo, Marsudi; Hasibuan, Irkham Afnan Trisandi
Indonesian Journal of International Law
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Abstract

The Common Heritage of Mankind (CHM) has become a prevalent principle adopted in international treaties governing objects and resources situated beyond national jurisdictions. Despite this widespread adoption, it is still a subject of debate whether it constitutes something more than a mere treaty provision that only binds state parties. This paper aims to analyze the position of CHM in the sources of international law, with a focus on analyzing its existence as a customary norm and a general principle of international law. There has been no international dispute involving CHM, which leaves the question of its position in international law as it was never clarified by international court judges. This paper seeks to explore whether it would be legitimate for international courts to regard CHM as a law in settling disputes involving parties that are not bound to the relevant international treaties adopting CHM. The research was done normatively by assessing the historical and contemporary facts that could help clarify the position of CHM in international law. The research finds that CHM can be regarded as both a customary norm and a general principle of international law. CHM begins as a general principle rooted from natural law, which is then followed by consistent practices and opinio juris, indicating its acceptance as a customary norm. This paper argues that it would be legitimate for international courts to regard CHM as a law in resolving disputes relating to CHM objects irrespective of the parties’ involvement in the relevant international treaties.
Developing Standards for PSMA 2009 Implementing Port and Its Implementation in Indonesia Solihin, Akhmad; Darmawan, Darmawan; Sondita, Muhammad F.A.; Purbayanto, Ari
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The ratified countries of PSMA 2009 are mandated to determine their implementing port without specifying any particular standards. The presence of port standards will ensure the effectiveness of services in preventing and eradicating IUU Fishing. Therefore, standards are needed to optimize the main objectives of the 2009 PSMA, especially in Indonesia, an archipelagic country with diverse fishing port classes and different management systems between general cargo ports and fishing ports. The objectives of this research are (1) to develop service standards for ports implementing PSMA 2009 and (2) to examine the readiness of ports implementing PSMA 2009 to prevent IUU fishing. This research uses content analysis and literature review methods. The results of this study reveal that Indonesia has legally adopted the 2009 PSMA, but there are two port state regimes that prevent and reduce IUU fishing such as Port State Measures and Port State Control. The service standards that must be met by ports designated to implement PSMA 2009 are (1) application services, including service officers receiving application letters and risk analysis officers, and (2) inspection services, including trained officers, authorized officers, English-speaking officers, inter-agency coordination mechanisms, and officer identity. While Benoa General Cargo/Public Port is ready to implement PSMA 2009, its fishing port still needs improvement.
Current Energy and Energy-Related Services Negotiations Viewed from Developing Countries Legal Protection Hutajulu, Jonson
Indonesian Journal of International Law
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Abstract

This article aims to critically analyze current issues on energy services and energy-related services negotiation, viewed from developing countries legal protection on areas of energy production, transformation, transportation, distribution and sale of energy under the General Agreement on Trade in Services (GATS). Unfortunately, energy as an object of negotiation has been firmly agreed as goods, while markets on the aforementioned aspects reveal capacity gaps between developed and developing countries in order to reach efficient and fair energy services trade. Series of negotiations have been conducted creating scheduled of commitments among state parties interpreting GATS’ rules on affirmation enjoyed by developing countries to be more open and capable. The analysis in this paper is mainly construed using the economic analysis of international law stipulated by Thomas, Trachtman, Posner, and Djiwandono. It provides a framework of analysis on how negotiation under the WTO GATS generate a distinctive legal feature on international trade, and why developing countries need to be affirmed for entering their market access and exemption for the most favour nation clauses. This article reveals that current negotiation is still slow to omit inefficiency and monopoly, due to unclear definition and classification of these sectors. Factually, scheduled of commitments have pointed to test in terms of increasing developing countries’ understanding, allocation of all available resources and reducing potential risks when they give their commitments gradually and step by step approach. At the same time, developed countries also take measures on underlying necessity of legitimate reasons, authority, as well as their advanced resources to be shared to reduce capacity gaps for better market access to developing countries. As a result, proportionality, factuality, and non-discrimination underline issues to reach efficient and accountable energy and energy-related negotiation.
Reinterpreting the Normal Mode of Submarine in Archipelagic Sea Lane Passage Yoga, Pornomo Rovan Astri; Alverdian, Indra
Indonesian Journal of International Law
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Abstract

Today, many experts of maritime powers take it for granted that a foreign submarine has the right of submerged passage in an archipelagic sea lane. By using the 1969 Vienna Convention on the Law of Treaties (VCLT) as a tool of interpretation, this paper tries to decipher whether a submerged passage is permissible or not in archipelagic sea lane passage. This paper found that the submerging in an archipelagic sea lane passage is not a generally accepted interpretation of “normal mode” in Article 53 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The writers discovered on one hand, the result of the travaux preparatoir means of interpretation appears to be in favor of the submerged passage being included within the meaning of “normal mode”. The textual interpretation, on the other hand, emphasizes the exclusion of submerged passage from both transit passage and archipelagic sea lane passage. In the case of an archipelagic sea lane passage, the exclusion of submerged passage weighs more than the transit passage. Therefore, based on VCLT 1969, which says that the textual interpretation takes precedence over the interpretation of travaux préparatoires, the submerged passage is not a widely accepted interpretation.
Implementation of THE CEDAW in France and Indonesia: Challenges and Progress Towards a Unified Approach to Women's rights Maret, Louna
Indonesian Journal of International Law
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Abstract

Almost fifty years after the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and 189 ratifications, it is interesting to analyze the progress and challenges remaining regarding a unified approach to women’s rights. This paper will focus on Indonesia and France, two countries with different cultural backgrounds and approaches regarding human rights. The research methods are mostly based on lectures of legal journal articles, papers, and recent periodic reports of the Committee that ensure the implementation of the CEDAW. After recalling the historical context of women’s rights in both countries to highlight the challenges that are already present before CEDAW and analyzing the last period’s reports considering articles of the CEDAW to identify progress and challenges remaining, we can conclude that women’s rights through the implementation of CEDAW are still falling short on men’s rights. A worldwide problem seems to be persistent: patriarchal values. A unified approach of the CEDAW is essential to ensure women’s rights worldwide, considering that women’s rights are universal and not just based on Western standards.

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