Sriwijaya Law Review
The Sriwijaya Law Review known as the SLRev launched on the 31st January 2017 and inaugurated formally by the Rector of the university is a forum which aims to provide a high-quality research and writing related to law. Areas that relevant to the scope of the journal cover: business law, criminal law, constitutional law, administrative law, and international law
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<![CDATA[Exercising No Harm Rule: Claims for Damage and Loss Due Climate Change Effects ]]>
<![CDATA[Mada Apriandi Zuhir]]>;
<![CDATA[Febrian Febrian]]>;
<![CDATA[Murzal Murzal]]>;
<![CDATA[Ridwan Ridwan]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1646.pp174-188
<![CDATA[The act of utilising all the resources owned by a state, including natural resources, is the right of every state. However, its use is prohibited if it causes harm to other states. This is then referred to as the principle of no harm rule in international law. Therefore, each state is responsible not for causing damage to other States' environments or areas outside the limits of its jurisdiction. This article will analyse the development of the no harm rules and its application model for claiming state responsibility. As normative research, it used secondary data as the main data, and the primary, secondary and tertiary legal materials were analysed qualitatively. In discussion, this principle has long existed as customary international law to mitigate transboundary pollution. In the case of the environment in general, many studies have applied this principle. However, due to the uniqueness of the climate change issue, evidence and proof of the impacts caused cannot be used as the basis for a lawsuit like ordinary environmental cases. Based on the discussion and simulation conducted, it is concluded that the no harm rules principle can be applied to climate change issues. However, this principle is not satisfactory and has limitations in its application.]]>
<![CDATA[Regulatory Support for Biosequestration Projects in Australia: A Useful Model for Transition to Net-Zero Emissions? ]]>
<![CDATA[Steven Geroe]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1510.pp1-23
<![CDATA[This paper considers the effectiveness of Australian regulatory measures to support storing atmospheric carbon in plants and organic matter in soils (biosequestration), a central element of the Australian greenhouse gas (GHG) emission policy through the Emissions Reduction Fund (ERF). Eligible methodologies under the ERF are broader than those in other jurisdictions. Hence Australian experience may have international application. The functionality of Australian regulation to achieve GHG emissions reduction is considered, focusing on provisions relating to additionality, permanence, monitoring, reporting and verification of emissions bio-sequestration. This analysis is conducted by reviewing key publications by research organisations, academics, government departments, industry organisations, environmental organisations and private sector consultancies. While the integrity of Australian biosequestration offsets is generally well regarded, persistent issues have been identified with regard to the additionality of avoided deforestation methane capture in intensive agriculture and landfill gas projects. The proportion of Australian emissions represented by existing biosequestration offset projects is deficient. These issues must be addressed in order to scale up biosequestration projects as an effective element of Australia's net-zero emissions strategy. It can best be achieved by tightening Safeguard Mechanism baselines to drive demand for carbon credits and funding the Clean Energy Regulator to implement effective, independent MRV. Ongoing regulatory reform will be necessary to address such issues as they arise in the course of the implementation of specific methodologies. Nonetheless, ongoing emissions risks relating to biosequestration and other offset projects can only be adequately addressed by complementary policy to reduce emissions at the source.]]>
<![CDATA[The Rationalization of Debt Discharge Policy for Individual Debtors in Indonesian Bankruptcy Regime ]]>
<![CDATA[Robert Robert]]>;
<![CDATA[Rosa Agustina]]>;
<![CDATA[Bismar Nasution]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.928.pp101-121
<![CDATA[The Indonesian bankruptcy regime tends to be harsh to the debtors, especially the individual debtors. In contrast, the creditors possess the right to pursue the debtor’s outstanding debts even after the bankruptcy process. For that reason, this article aims to argue why it is rational for the Indonesian government to implement a debt discharge policy in the Indonesian bankruptcy regime. This article employs a normative research method, using a conceptual and comparative approach. The result of this study is based on the debtor cooperation theory and the humanitarian theory of debt discharge. Hence, it is rational for the Indonesian government to implement a debt discharge policy for individual debtors. The first and second Sila of Pancasila is also in line with these theories. Consequently, as a member of society, the individual debtor should be treated with dignity and humane values, which includes debt forgiveness. Nevertheless, not every debtor is deserves to be discharged from his debts. Therefore, it is rational for the Indonesian government to implement the debt discharge policy in the amendment of Indonesian bankruptcy law to protect the honest but unfortunate individual debtors.]]>
<![CDATA[Law Enforcement Against Unreported Fishing: What Does Beyond the Catch Record? ]]>
<![CDATA[Rachma Indriyani]]>;
<![CDATA[Asmar Abdul Rahim]]>;
<![CDATA[Ruzita Azmi]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1032.pp189-204
<![CDATA[Transparency is significant in highly migratory fisheries. The reliability of the catch data is essential for decisions of internationally agreed targets. Nevertheless, the data accuracy will much depend on each state's performance. Focusing on unreported catches of migratory fish, this study highlights the Thunnus Macoyyi (Southern Bluefin Tuna) fishing in Indonesia, as this fish species had experienced for being the limelight of unreported fishing allegations. The main objective is to reveal what are the difficulties that Indonesia is facing on its responsibility to maintain the accuracy of the catch record. Accordingly, the study examines two points by applying the pure legal method and doctrinal approach. Firstly, the international legal framework towards unreported fishing by analysing three main instruments such as the UNCLOS 1982, the UNFSA 1995, and the CCSBT policies. Secondly, it examines Indonesia law enforcement as a State party of regional fisheries organisation. It argues that the international authority could not be completely extended to a State's domestic fishing area. Thus, it gives more discretion to the national law to enforce compliance. Lesson learned from the case study of Indonesia's southern bluefin tuna contributes to unreported fishing literature and allows us to expose the legal gap remained in managing highly migratory fish stocks.]]>
<![CDATA[Legal Protection of Work Safety Crimes Victims In Indonesia ]]>
<![CDATA[Hamonangan Albariansyah]]>;
<![CDATA[Topo Santoso]]>;
<![CDATA[Eva Achjani Zulfa]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1363.pp24-40
<![CDATA[Between 2014 and 2018, the Indonesian Ministry of Manpower recorded 89,625 cases of work accidents, and 1,193 of them resulted in death. During this period, 34,075 companies were reported for alleged work safety crimes. From the 2,074 cases, only four have been sentenced to prison. The most interesting issue is that the victims of work safety crimes do not get any kind of restitution or even compensation. This article aims to investigate the legal protection for victims of work safety crimes from the criminal law perspective. The method used is normative qualitative research on primary data, such as work safety legislation, the Criminal Code, and criminal court decisions. As a result, the work safety law stipulates that the purpose of law enforcement on work safety is recovery for victims, repairs and prevention. They are carried out to protect the public interest. Work safety regulations also regulate the qualifications of actions categorized as work safety crimes. Unfortunately, the regulation does not provide a mechanism for resolving work safety crimes. So that the settlement of work safety crimes relies on the general criminal justice system that adheres to retributive objectives in law enforcement. The purpose of law enforcement on work safety cannot be applied because victims do not get restitution or compensation. Thus, to obtain legal protection in accordance with the objectives of law enforcement on work safety, the alternative solution is a criminal policy to establish a special criminal mechanism for the settlement of work safety crimes.]]>
<![CDATA[Can Judges Ignore Justifying and Forgiveness Reasons for Justice and Human Rights? ]]>
<![CDATA[Oksidelfa Yanto Yanto]]>;
<![CDATA[Imam Fitri Rahmadi]]>;
<![CDATA[Nani Widya Sari]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1054.pp122-142
<![CDATA[In the criminal law system in Indonesia, there are two reasons why an individual suspected of having committed a crime must be released. These two reasons are justifying and forgiveness reasons. In practice, these two reasons are linked to the elimination of criminal acts based on legal justice and human rights. This article discusses the legal consequences when the judge rejects the justifying and forgiveness reasons that can eliminate the sentence. The method used in this research is normative juridical by analysing norms, principles and rules of law with a case approach. As a result, this research shows that judges in practice have the authority given by law to determine whether an action can be categorised as justifying and forgiveness reasons that eliminate punishment by referring to the principles and legal regulations for justice and human rights. However, when the judge ignores these two reasons due to considerations of lack of justice and respect for human rights, this practice can be carried out by the judge with the consequence that this decision will cause harm, suffering and misery for the accused. This article argues that to protect the public interest from wrong decisions is necessary to reform the Criminal Procedure Code (KUHAP) to provide objectivity, honesty, and justice that rely on legal principles and rules.]]>
<![CDATA[Society 5.0: A New Challenge to Legal Norms ]]>
<![CDATA[Nabeel Mahdi Althabhawi]]>;
<![CDATA[Zinatul Ashiqin Zainol]]>;
<![CDATA[Parviz Bagheri]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1415.pp41-54
<![CDATA[Society 5.0 is a new term used to indicate the future world. This society is based on ubiquity, learning machines, the internet of things, big data, cloud computing, cryptography, and biometrics. All these technologies will be merged to create a new mode of life. The new way of life will inevitably influence human beings’ values, concepts, and conduct. The result of these changes will consequently bring challenges to many legal areas. This paper addresses the challenges that brought society 5.0 to legal norms. It utilises the analytical approach to examine the capability of pre-existing legal norms to cope with new realities created by society 5.0. The paper analyses the legal implications of society 5.0 in their sociological context. It presents a jurisprudential vision to establish legal norms compatible with the new society. Three fundamental principles should be considered to establish new legal. First, social facts that trigger legal regulation can simultaneously occur in multiple places. Secondly, what the study called duality of legal rules will not survive in society 5.0 era. Third, the paper turns the spotlight on new intelligent systems which may introduce new law addressees.]]>
<![CDATA[Non-Adherence to Human Rights and Humanitarian Laws in the Conduct of Armed Conflict in Yemen ]]>
<![CDATA[Mohammed Salem Alqahtani]]>;
<![CDATA[Rohaida Nordin]]>;
<![CDATA[Faridah Jalil]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1459.pp143-162
<![CDATA[To protect the properties, lives, and dignity of human persons worldwide, the International Humanitarian Law seeks to uphold and promote Human Rights Law and other international frameworks regulating the rights of civilians and parties to armed conflict. The conduct of parties to the armed conflict who have grossly violated the combined provisions of International Human Rights Law and the International Humanitarian Law resulted in the persistence of armed conflict and warfare in Yemen, thereby crossing every access road to humanitarian rights and privileges. The researchers adopt the doctrinal methodology to investigate the status of warfare in Yemen, the provisions of the law on International Human Rights and Humanitarian Law, and the extent to which the parties to the armed conflict in Yemen break such laws. The International Humanitarian Law and the International Human Rights Law regulate the conduct of actors and parties in the armed conflict both in Yemen and the world at large. The finding of this studydemonstrates that all the participants in the conflict in Yemen violate the International Humanitarian Law. Therefore, they are accountable for such violations.The research recommends strict adherence and compliance to both the International Human Rights Law and the Humanitarian Law throughout the armed conflict in Yemen to have lasting peace. Furthermore, accountability for violations committed should be identified, and all actors in the armed conflict should be punished accordingly.]]>
<![CDATA[The Patent System During Global Pandemic and the Access to Medications and Vaccines ]]>
<![CDATA[Fatou Diagne Mbaye]]>;
<![CDATA[Agus Sardjono]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1233.pp55-69
<![CDATA[The Declaration on Trade-Related Intellectual Property Rights (TRIPS) and Public Health Agreements want to promote the balanced interpretation and implementation of its provisions and promote universal access by assisting WTO members to protect public health rights. Two years will soon pass, and the emergence of new variants of COVID-19 shows that the virus will not stop at national borders. However, vaccines are gradually entering and almost monopolised by industrialised countries. If Jonas Salk thought in the 1950s that patenting his polio vaccine was like patenting the sun, the problem appearing is that today's patent holders do not think so. The COVID-19 vaccine is owned by biotech companies, universities, research institutes or pharmaceutical companies. The purpose of this research is to analyse, through a normative juridical approach, the requirement for patent holders to protect their intellectual property rights if they are to remain competitive in the marketplace. Not to forget that they must pay patent fees as a percentage of the final price of the vaccine, which is a significant benefit to the economies of the countries where they are located. While for developing countries, the best solution would be to produce their vaccines. With industrial property rights, it seems impossible to transfer the vaccine technology on COVID-19. That is why some developing countries (South Africa and India have the support of many other developing countries) have filed a complaint with the WTO, requesting a waiver of property rights under Article 31 of TRIPS in order to produce a COVID-19 vaccine on a large scale and at an affordable price. ]]>
<![CDATA[Freedom of Religion and Gender Equality in Sustainable Development Agenda ]]>
<![CDATA[Khansadhia Afifah Wardana]]>;
<![CDATA[Rahayu Rahayu]]>;
<![CDATA[Sukirno Sukirno]]>
<![CDATA[ Sriwijaya Law Review Volume 6 Issue 1, January 2022 ]]>
Publisher : <![CDATA[Faculty of Law, Sriwijaya University, Indonesia ]]>
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DOI: 10.28946/slrev.Vol6.Iss1.1567.pp163-173
<![CDATA[The implementation of Sustainable Development Goals (SDGs) often lacks in human rights perspective, although the goals themselves were created based on the human rights principles. However, further studies in development and international human rights law show that it is essential to highlight that particular relationship. As a member of the international community, states have an extraterritorial obligation to assist one another in developing and fulfilling the human rights of their people. Particularly in the field of freedom of religion or belief and gender equality, which creates a domino effect on other women's rights such as access to justice and education. Although SDG 2030 has expressed its commitment to respect, protect, and promote fundamental freedoms, including one's religion, and to achieve gender equality, the antagonistic construction between those two issues possibly harm the women’s rights movement and does not adhere to the “no one left behind” principle. The lack of recognition between those issues would be damaging and could be deemed a failure to achieve the sustainable development goals. This research was conducted through a qualitative legal analysis by analysing relevant literary sources to understand the hidden link between freedom of religion or belief and gender equality within the sustainable development agenda. Clarity of these complex elements can be beneficial in creating a tool in advocating for women’s rights, especially for those who belong to religious and belief minorities.]]>
