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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 Impact Of Political Decisions Within The WTO Dispute Settlement System: Political Negotiations Within Adjudication Gebeyehu, Meaza Haddis
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

It is traditionally contended that politics and law are two separate domains of international relations among the main actors, states. As opposed to this thinking, international relations of the twenty-first century have been characterized by the continuing interaction of law and politics. As the main actors and participants in international law, states played and still play significant roles in this development. The growing sense of nationalism within states and the concomitant consequence of prioritizing their respective national interests led to the use, by these states, of international law as an instrument of justification. When international law is used this way, politics, and law inevitably confluence to serve the interests of those states with strong national objectives that they seek to achieve in any way possible. International trade has become very essential in international relations more than ever while it at the same time is affected by the political decisions of states at different levels. When the World Trade Organization was established (January 1, 1995), its first aim was to institutionalize the international trade relation among states so that more trade liberalization and integration would be achieved. It has been doing a remarkable job in working towards a more integrated world through its laws, systems, and institutions. The WTO Dispute Settlement System, with its establishing agreement (Dispute Settlement Understanding) and adjudicating bodies, is such a crucial system of the WTO with a good reputation in the past two decades. It has a complex procedure consisting of both political negotiation and adjudication in the judicial process. This paper limits itself to examining how political decisions by Member states within the WTO affect the WTO dispute settlement system’s progress to ‘judicialization’ of its adjudication process.
Self-Determination And Territorial Integrity Revisited: Reflecting Chagos Advisory Opinion And Its Comparison With West Papua Fadilah, Irfan; Adirespati, Parusa Seno
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The right to self-determination and territorial integrity are amongst the cardinal principles of international law mostly utilised in determining the territory of a state. Both principles are equally protected and guaranteed under international law, and any attempt for total or partial disruption of a territory violates the right to self-determination of peoples. The relation between the two principles is evident in Chagos Advisory Opinion issued by ICJ which states that a former colonial territory detached by a colonial power violates the right to self-determination unless such detachment is based on freely expressed will of the people of the concerned territory. The Chagos Archipelago was originally detached from Mauritius by the UK prior to its independence in 1968. A similar situation was also apparent in Western Papua, in which the Dutch administration attempted to detach it from Indonesia prior to the transfer of sovereignty in 1949 under the name of Dutch Western New Guinea. This attempted detachment became one of the biggest arguments used in supporting Papuan independence since it was narrated that the territories were under a different administration. This article argues that such detachment is considered a disruption of territorial unity, which ultimately violates the right to self-determination of people. Furthermore, it also argues on how Indonesia has sovereignty over Western Papua. Those issues will also be discussed through the lens of international politics, especially in terms of the existence of state interests, both related to the former colonial countries and the international community in addressing the two cases.
Diclosure Of Thirs-Party Funding Arrangements aand The Existence of Third-Party Funders in International Investment Arbitration Kadarisman, Abimanyu
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

Third-party funding has been commonly used in International Investment Arbitration. Third-party funders increasingly usually finance the claimant who either (i) does not have sufficient funding to start legal proceedings, or (ii) adequately capitalized, but seek funding in order to minimize cash flow disruption and share risk during their arbitration proceedings. However, the notion of third-party funding gives rise to several issues; first, should funded parties be required to disclose their funding arrangements? Following the first research question, when does the funded party need to disclose the existence of a third-party funder? Then what legal measures can be taken to tackle the concern of transparency and disclosure in cases involving third-party funding? This research concentrates on the transparency and disclosure requirements, which is the central issue that influences further development and use of third-party funding arrangements in international arbitration. Analysis of relevant treaties, laws, guidelines, and case laws drives us to the conclusion that there exist measures and several drains the current international arbitration system that will serve a transparency system to control third-party funding. Hence, it would be appropriate for arbitration institute or investment treaties to take these tools into account in order to provide legal certainty for the disputing parties, arbitral tribunal, and ultimately, for the legal framework of third-party funding in investment arbitration..
Indonesia Legal Analysis of IUU Fishing And Transnational Organized Fisheries Crimes: Loopholes and Proposed Measures Mubarok, Zaki
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The fight against illegal fishing by the Ministry of Marine Affairs and Fisheries has taken off. When investigating Illegal, Unreported and Unregulated (IUU) fishing, related transnational crimes activities such as trafficking in persons, slavery and drugs are also uncovered. In spite of the robust efforts and prompt responses, some challenges persist in terms of the inadequacy of legal frameworks governing these problems. Thus, the adequacy of the legal domain is a significant factor in pursuing the Ministry’s mission. The legal framework plays a pivotal role in addressing IUU fishing and transnational organized fisheries crimes and in setting a mechanism to prevent further expansion of these activities. In developing an in-depth analysis of the nexus between IUU fishing and transnational organized crimes, the two dimensions of intertwined national and international legal frameworks need to be examined. This article attempts to examine the existing Indonesian legal framework to combat IUU fishing and fisheries crimes within the context of relevant national and international laws and provide a critical discussion of the interplay between IUU fishing and transnational organized crimes.
Finding Legitmacy on European Union Trade Policy to Limit the Import of Palm Oil: Will Indonesia Survive (again)? Sutrisno, Nandang
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

In March 2019, the European Union considered palm oil to cause ILUC along with being one of the contributors for emission and pollution. However, the move has been condemned by palm oil exporting States, such as Indonesia. It is accused as a modern, “green protectionist” move to protect national market or other countries importing goods. Since European Union uses environmental justification to restrict palm oil import from Indonesia, it is inherently correlated with the general exception enshrined in Article XX of the GATT relating to the principles of international trade. Under the assessment based on Article XX and judicial decisions before the WTO, the article concludes that the DR is not the only measure possible and will not give siginificant effect on ILUC. It only creates unjustifiable and arbitrary discrimination towards Indonesia since there is no sufficient link between the environmental purpose of the DR and its provisions
Revising Bilateral Investment Treaties as a New Tendency in Foreign Investment Law: India and Indonesia in the Focus Pejovic, Caslav; Pardede, Juliartha Nugrahaeny
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

In the second half of 20th century the central theme of foreign investment debates was on balancing conflicting interests between developed and developing countries. As one of the most visible signs of this tendency is the process of revising bilateral investment treaties (BITs). This paper has focus on two countries, India and Indonesia. These two countries have been selected not only because of their size and importance for foreign investors, but also because of important reforms regarding BITs undertaken by these two countries that have attracted worldwide attention, particularly in other developing countries. These two countries have taken different routes, but motivated by similar concerns and objectives, and represent some of the most striking examples of the new tendency towards revision of BITs. The key issue that will be explored in this text is: What can be expected from this process of revising BITs and do the new BITs model provide for a good balance between the interests of host states and foreign investors? This is the core issue of foreign investment law, from the perspective of developing countries, which raises several further questions: How to design foreign investment law so that foreign investment can be attracted without impairing the interests of the host states? Is that possible at all, and what would be the good balance that developing countries should aim at? And, the central issue of this paper is: Do new BITs models contribute to these objectives of developing countries?
Legal Protection of Indonesian Citizens in Mixed-marriage with Rohingya Refugees Allagan, Tiurma M. P.; Salfa, Salsabila; Sekarlangit, Agnes Galuh
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

There are 14 marriages that occurred between the Rohingyas and Indonesian citizens carried out in 2017. Only nine of them were reported to the refugees handling agency. Some have been made before coming to Indonesia and some after arrival. These situations resulted in legality problems of the marriage and its implications. The right to marry is fundamental in the life of human and is protected as human rights. However, Indonesia is not a signatory to the Convention on the Status of Refugees 1951 and has no legal mechanism to govern their marriages. Consequently, life for both asylum seekers and refugees is a relentless struggle and one of the significant challenges for them is in the area of marriage and family. This paper will discuss how Indonesian private international law provisions and the marriage law accommodate and protect the rights to marry stateless refugees in Indonesia. This paper primarily discusses the legal status of stateless persons and refugees amidst the lacuna in Indonesia. Noting the shift from the principle of nationality evident in case laws, this paper explores the possibility to use lex domicili as a surrogate connecting factor in determining the law applicable to stateless refugees’ personal status. In relation to marriage, subsequent validation (isbat nikah) could be the solution to ensure family unity. As the lack of valid documentation remains a challenge, the goodwill of the couple to enter into marriage and establish a family become the most important element.
Indonesia’s Obligation to Protect Archaeological and Historical Objects at Sea based on UNCLOS 1982 Latuputty, Marcelino H.
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The protection of archaeological and historical objects found at sea, one of them was contained in 1982 UNCLOS. Indonesia as the State Party of UNCLOS has the obligation to protect such objects. However, provisions regarding the protection of such objects in UNCLOS was considered as obscure and ambiguity. Otherwise, the protection of such objects furthermore arranged in 2001 UNESCO Convention on Underwater Cultural Heritage. Unfortunately, Indonesia is not the party of the 2001 UNESCO Convention. This fact makes Indonesia’s obligation in international law is confined only on UNCLOS. Therefore, the aim of this article is to explain regarding Indonesia’s Obligation to Protect Archaeological and Historical Objects Found at Sea Based on the 1982 UNCLOS, and also the regulations and the practices of Indonesia’s national law. In the Indonesian legal system, there are several national regulation which cover the protection and preservation of UCH. However, the matter related to the disharmony of laws and regulations for the protection and preservation of UCH, nor the lack of implement regulation, leading the protection and preservation of UCH to less optimal. In this context, Government needs to emphasize that the protection is pure for the purpose of conservation only, or can it be utilized and manageable for commercial purpose in certain condition. Therefore, will create legal certainty concerning the protection and preservation of UCH.
State Intervention in Air Transport: Experience from the Republic of Indonesia Simatupang, Andika Immanuel
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

State intervention of the air transport industry is a widespread practice throughout the world where this kind of interference from the government to the air transport industry could be in the form of state aid or state subsidies. This paper attempts to explain the impact of state aid in the competition of air transport in The Republic of Indonesia resulting distortion in the competition of the aviation industry. This paper examines the state aid practice in The Republic of Indonesia and attempts to answer the debate whether this practice resulting in an unfair competition and violating level playing field in air transport in Indonesia or such method then creates an efficiency in air transport in Indonesia which makes it a good policy. However, this paper will not look into the analysis of the difference between terminologies on State aid and State subsidies.
Justifying Extraterritorial Regulations of Home Country on Business And Human Rights Waagstein, Patricia Rinwigati
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Abstract

The regulation of home country to govern business and human rights has been commonly debated. It is argued that home states regulations have a potential role to play in the regulation of multinationals on business and human rights. It particularly can fill the gap due to the extraterritorial nature of MNC operations which requires an integrated regulatory approach and it can also provide alternative forum for victims to human rights violation by corporation to seek justice. The question is in what sense home states should be responsible for violations of human rights by subsidiaries in host countries. What are the justifications and what are the limitations? This article tries to answer those questions by highlighting the debates over the duty bearer, a right or obligations of home countries to impose extraterritorial regulations to other countries.

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