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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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Human Rights Concern in International Investment Law: A Study of Indian International Investment Agreements Chhachhar, Varun; Negi, Monika; Singh, Prashant; Kumar, Niharika
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The interaction of human rights and investment protection obligations in international investment law is on the rise. Human rights have been cited in claims and defenses of the parties and in the reasoning of the tribunals. Since majority of international investment agreements lack clarity and do not express the use of the term ‘human rights’, experts question the legitimacy of such usage. Given the alleged backlash and ongoing reforms in international investment law, the lack of human rights concern in international investment law needs proper investigation. This paper investigates the issue in the Indian context. After the adoption of its new Model Bilateral Investment Treaty in 2015, India has unilaterally terminated most of its international investment agreements and is negotiating new ones. This paper identifies the ways in which the issue of human rights is invoked in international investment law, with an analysis of the investment treaty practice of India using a doctrinal method. Indian international investment treaty practices before the 2015 Model BIT mostly did not include the term human rights, but the BITs signed post 2015 Model do expressly use the term human rights, albeit in the form of voluntary obligations. Additionally, India made human-rights based arguments and the tribunals did mention human rights in awards to which India was a party but the tribunals stressed upon the need to have express human rights provision in the treaty, which it mostly lacked.
The Implications of UN Security Council Resolutions in Shaping the Dynamics of the Palestinian-Israel Peace Process: The Israel-Hamas War as a Case Study Ahmed, Awara Hussein; Ali, Hemn Shawkat
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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The Israeli war on Gaza on 7 October 2023 has raised questions regarding the effectiveness of international institutions in promoting peace and security. The Security Council (SC) plays an important role in global conflict resolution. The Council's response to the bloody war in Gaza has been the subject of scrutiny, causing many to question its competence and impact on global stability. Therefore, this study aims to examine the participation and influence of the United Nations Security Council (UNSC) in shaping the dynamics of the Israel-Palestinian conflict, with a particular focus on the recent military conflict between Israelis and Palestinians in the Gaza Strip. A mixed-method design was used to provide a nuanced understanding of UNSC engagement, and it combines the qualitative analysis of diplomatic discourse with quantitative analysis of historical and new UNSC resolutions. Furthermore, the legal analysis method was used. The results showed a correlation between the escalation or de-escalation of the conflict in the Israel-Palestinian context and the intricate patterns of decision-making in the UNSC. These results emphasized the limitations and potential strengths of the UNSC, as well as providing insight into the viability or effectiveness in conflict resolution.
BBNJ Agreement and the Negotiation Process: an Analysis From Developing Country Perspective With Special Focus on Indonesia K K, Simi; Chalakkal, Kavitha
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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The governance of marine genetic resources from areas beyond national jurisdiction (ABNJ)and regulating access to this regime in all available and existing forms is a core issue before international policymakers. The recently concluded BBNJ Agreement negotiations for the conservation and sustainable use of marine biological resources from areas beyond national jurisdiction was a platform to negotiate for a new legal instrument to address the core issues related to marine diversity from ABNJ, as agreed under the UNGA Resolution 72/249 to address the problems identified in the 2011 package. Defining MGRs and developing appropriate access and benefit-sharing mechanisms for marine biological resources was a matter of concern for developing and underdeveloped countries. The conflicting interests of technically advanced nations on one side and the developing, least developed, and underdeveloped countries on the other hand were highly debated during the negotiation process. The outcome of Part I and II that regulate access and benefit sharing under the BBNJ Agreement will have a broader impact on the interests of developing states and raise implementation challenges of the instrument that will be revealed to the fullest extent only once the Agreement enters into force. The paper will make a critical analysis of the BBNJ negotiation process and its outcome, on access and benefit sharing, focusing on Part I and II of the Agreement, from the Intergovernmental Conferences (IGC) and the submissions by developing/ states, with a particular focus on Indonesia and India, to understand the outcomes, and the extend of the reflection of the interests of states in the final text.
In-depth Analysis on Strengthening Sanctions for Fisheries Violations in Indonesia: Challenges, Obstacles, and Reform Shafira, Maya; Akib, Muhammad; Sumarja, FX; Fardiansyah, Ahmad Irzal
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Illegal, Unreported, and Unregulated (IUU) Fishing remains a significant challenge for Indonesia, posing threats to its marine resources, economic stability, and national sovereignty. This study examines the enforcement of sanctions against fisheries violations in Indonesia from an international legal perspective. It explores how Indonesia aligns its regulatory framework with global legal instruments, such as the United Nations Convention on the Law of the Sea (UNCLOS), the Port State Measures Agreement (PSMA), and regional agreements within ASEAN. The research identifies key challenges, including legal inconsistencies, enforcement limitations, and jurisdictional complexities, which hinder the effective prosecution of fisheries crimes. It also analyzes obstacles in implementing stricter sanctions, particularly in cases involving foreign fishing vessels operating illegally in Indonesian waters. The study also assesses Indonesia’s current legal reforms and proposes policy recommendations to enhance compliance with international norms. Strengthening cooperation with neighboring countries, improving monitoring and surveillance systems, and reforming legal mechanisms are crucial steps toward ensuring more effective sanctions. By integrating international legal standards into domestic policies, Indonesia can enhance its ability to combat fisheries violations while fostering sustainable marine resource management.
Asian Values in International Dispute Settlement: Issues of Parallel Jurisdiction Huang, HaiJing; Ong, Tze Chin
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Asian Values promoted significant economic growth to Asian societies in 1990s but were challenged by the 1997-1998 financial crisis. Engaging in regional trade agreements (RTAs) can enhance market access and keep regulatory cooperation, the number of RTAs has grown explosively in Asian countries. Most of these RTAs may include more far-reaching form of dispute settlement provisions distinct from or parallel to the World Trade Organization (WTO). Historical analysis is employed to examine the applicable principles of Asian Values and their influences on economic growth and dispute settlement. Additionally, the article also conducts case study analysis of several trade disputes with choice-of-forum clauses before the WTO panel within Asian countries, thereby assessing the interplay between RTAs and WTO jurisdictions. The research reveals ambiguities issues in parallel jurisdiction among dispute settlement mechanism of Asian RTAs and that of the WTO. The standstill of appointing WTO Appellate Body members and the proliferation of RTAs with Asian Values-oriented dispute settlement mechanisms have intensified these challenges. This article demonstrates the increasing popularity of alternative dispute resolution mechanisms rooted in Asian Values. It proposes integrating Asian Values into international dispute settlement to resolve parallel jurisdiction issues between RTAs and WTO, offering a more efficient solution to the complicated legal landscape in Asian region.
The Historic Advisory Opinion on Palestine: An Overview of Indonesia's Submissions and the Way Forward Rosandry, Indra; Taborat, Aloysius Selwas; Adiputra, Kadek Denny Baskara
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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On 19 July 2024, the International Court of Justice (ICJ) rendered a historic ruling which declared that Israel’s presence in the Occupied Palestinian Territory (OPT) is unlawful. While this historic Advisory Opinion on the Legal Consequences Arising from Israel’s Policies and Practices in the OPT, including East Jerusalem (Advisory Opinion) should be celebrated, much more needs to be done in order to fully realize the decisions contained therein. This article presents an overview of the Republic of Indonesia’s legal arguments submitted to the ICJ concerning the request for an Advisory Opinion. Indonesia, a staunch supporter of the Palestinian cause, contends that Israel’s policies and practices constitute violations of international law, particularly due to its prolonged and illegal occupation over the OPT. This article seeks to analyze Indonesia’s submissions to the ICJ in light of the Advisory Opinion rendered, and looks at previous practices of the ICJ regarding advisory opinions to shed light on the way forward.
Grundnorm, Pure Theory of Law, and Monism in the Dynamics of International Law Samekto, FX Adji; Mahfud, Muh. Afif; Prabandari, Adya Paramita
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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The Grundnorm is Hans Kelsen’s teaching that was integrated into his theory known as the Pure Theory of Law. The Grundnorm is the highest source of legal imperative, which is accepted by every individual human being, based on his free will to submit orders that are no longer debated because they are accepted as truth. The Grundnorm being the source of the validity of legal imperatives, it means that is the highest source of the validity of regulatory law within the scope of national and international law. This is the background of the justification of the Monism school, which is part of the teachings in the Legal-Positivism school. This paper aims to describe the relationship between The Pure Theory of Law as the basis for justifying the existence of Monism. It also seeks to answer whether Monism can still be the basis for justifying the existence of international law. The results showed that Immanuel Kant’s teaching about the developmental stages of human recognition of the universe culminated in the ratio-practical and became the source of the development of Hans Kelsen’s legal teaching on the Grundnorm. Based on Hans Kelsen’s teaching, the Grundnorm is a pre-supposed source of necessity that is formed based on free will, but it is not created through formal procedures by the state. When examined from a sociological perspective, Monism, as a doctrine in the Legal-Positivism school, presupposes the state of society that develops linearly and statically. Monism’s validity was questioned when fundamental changes occurred in state relations in the post-World War II era. These fundamental changes are further accelerated in the post-globalization era, which is based on the demand for justice in relations between states with international legal instruments.
Thirtieth Aniversary of the Srebrenica Genocide: Revisting the Judgment in the “Bosnian Genocide Case” Halilović, Harun
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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The year 2025 marks the thirtieth anniversary of the Srebrenica genocide. This article aims to revisit and give an overview of the critical points of the judgment in the case of Bosnia and Herzegovina v Serbia and Montenegro (Judgment), related to the application of the Convention on the Prevention and Punishment of the Crime of Genocide that was conducted before the International Court of Justice. The case (also known as the Bosnia v Serbia case) was brought to an end by the Judgment in 2007, drawing a mixed response. The main points of contention in the Judgment are related to the question of reparations, as well as the standards used to ascertain the attributability of the acts of non-state actors for the breaches of rules of international law. Additionally, the very issue of how the case was brought to an end was another source of criticism, as it was finally concluded with the rejection of the revision request. The article will also briefly discuss other issues connected to the perception and understanding of the Judgment. By using case study and content analysis methods, certain contradictions in the Judgment are identified and presented after the analysis.
Compatibility Between the Indonesian Competition Law and Indonesia’s Climate Change Mitigation Policy Under The UNFCCC Paris Agreement 2016: Quo Vadis? Arinanto, Satya; Parluhutan, Dian; Sabela, Louise Shania
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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To overcome the global climate change crisis, the Government of Indonesia (GoI) ratified the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement on Climate Change on 22 April 2016, imposing quasi-legal obligations on contracting states to reduce greenhouse gas (GHG) emissions based on Nationally Determined Contribution (NDC) until 2030. As a contracting party of the Paris Agreement, Indonesia has submitted an Enhanced Nationally Determined Contribution (ENDC), increasing its GHG emission reduction target from 31.98 percent to 43.20 percent by 2030. Pillar II of the Golden Indonesia Vision 2045, Indonesia has also reaffirmed its commitment to climate change mitigation nationally and globally to reduce GHG emissions by 34 to 41 percent from the baseline scenario by 2045. Based upon the holistic interpretation of the Indonesian Competition Law Number 5/1999 in conjunction with Article 33 paragraphs (1), (2), and (4) of the Indonesia 1945 Constitution, the Competition Authorities must undertake the sustainability mandate, including climate change mitigation actions, The Indonesian Supervisory Commission for Business Competition (KPPU) in collaboration with other Ministries, the Indonesian Supreme Court (MARI), and the House of Representatives (DPR) must, by the Indonesian Competition Law (Law Number 5/1999), integrate the climate change mitigation policy and environmental preservation endeavours both in the formulation of rules and enforcement measures. The Indonesian competition authorities can, among others, generate the ‘Block Exemptions’ as a discretionary instrument and as a provisional antitrust enforcement policy. A prudent comparative study of competition law and practices in selected jurisdictions reveals that the Indonesian competition authorities can exempt environmentally oriented or sustainability agreements or transactions from traditional prohibitions through five methods, such as the structured rule of reason approach to guarantee the principles of proportionality and accuracy. This study endeavors to provide a feasible contribution to accelerating the climate change mitigation efforts by the government and the stakeholders from the perspective of competition law and practice. In order to enable structured analysis and provide optimal results, this research employs the normative juridical method coupled with a comparative law approach over the European and German competition laws.
Public Policy and the Refusal to Enforce Foreign Arbitral Awards: A Comparative Analysis of France, Singapore, and Vietnam Nam, Phan Hoai
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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The multilateral frameworks governing the recognition and enforcement of arbitral awards, such as the 1958 New York Convention, along with the domestic laws of most states, are generally designed to promote the efficient enforcement of foreign arbitral awards. However, practical experience reveals inconsistencies in its application. While many states adhere to international principles, some - despite being signatories to the Convention - have exploited the broad concept of public policy to unjustifiably refuse enforcement within their jurisdictions. Conversely, other states have adopted a more restrictive approach, limiting the public policy exception to ensure predictability in enforcement. This article focuses on the use of the public policy exception in France and Singapore, where courts have developed relatively clear frameworks. By analyzing these jurisdictions, the article identifies lessons that could enhance Vietnam’s legal framework, particularly in aligning domestic regulations with international standards and limiting the scope of the public policy exception to prevent misuse. The article begins by introducing the topic and outlining the research objectives. It then provides a comprehensive examination of the laws and regulations of both France and Singapore regarding the recognition and enforcement of foreign arbitral awards, focusing on their respective approaches to public policy in arbitration. Finally, Section IV analyzes Vietnam’s current legal framework, offering insights and recommendations drawn from the experiences of France and Singapore to enhance Vietnam’s approach to international arbitration. The article proposes reform measures to align Vietnam’s enforcement framework with global arbitration norms to bolster legal certainty for foreign investors and promote Vietnam as an arbitration-friendly jurisdiction.

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