Padjadjaran Journal of International Law
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The Reversed Implementation of the ICC’s Principle of Complementarity: Case Study of Argentina Investigation for Rohingyas
Get PDFComplementarity is the basic principle of the ICC’s jurisdiction. As a fundamental principle, it harmonizes the relationship between ICC and National Courts. The Rome Statute clearly states that the ICC is complementary to national courts. However, in the case of Rohingya, the Argentine Lower Court applied this principle in reverse by rejecting the investigation, requested by the Burmese Rohingya Organization UK under universal jurisdiction, for the case of Rohingya since the ICC had already investigated a similar case. This paper seeks to answer whether the ICC’s complementarity principle can be applied in reverse, as decided by the Argentine Lower Court, according to international law. A juridical normative research method will be used to address these issues. In addition, the recognized principles of interpretation in international law will be used to enrich the meaning of the ICC’s complementarity. Based on the analysis, it is obvious that, according to international law, the complementarity cannot be applied in reverse, even by states parties to the Rome Statute. According to the Rome Statute's provisions, every State is required to exercise criminal jurisdiction over persons responsible for international crimes. For this reason, this paper strengthens the arguments for the Argentine Appeal Court to overturn the Lower Court’s decision and reopen the investigation into the case
Dilemma of Competitive Equality: Transgender vs Cisgender Athletes in Women's International Sports Competition
Get PDFThis research aims to solve the human rights issue of the participation of transgender female athletes in international sports competitions in the women's division. The existence of transgender female athletes yields two perspectives: inclusivity as a human right for transgender female athletes and unfair competition for cisgender female athletes. This issue occurs due to the physiological advantages possessed by a transgender female athlete from the high level of testosterone they have, which creates unfairness in sports competition for cisgender female athletes, and the policies of international sports organizations that exclude the participation of transgender female athletes who have experienced puberty to take part in international sports competitions. Several controversial cases have sparked debate in the international community, such as the Tiffany Newel case in the running competition and the Lia Thomas case in the swimming competition; both are female transgender athletes who won sports competitions in the women's division. Although a transgender individual already has inherent human rights regulated through international law, these rights could not be a basis that overrides the rights and freedoms of other people. In this case, the right to equal and safe competition for cisgender women. The solution to this problem is to develop an 'open category' which aims to ensure the participation of all world athletes in sports competitions regardless of gender or gender identity
Reconstructing Economic Self-Determination from the Third World Approach to International Law
Get PDFInternational Law governing the relationship between states has been considered failed in reformatting the principle of economic self-determination (ESD) as a continual link of political self-determination in the post decolonisation era. Such situation has placed the principle to be a vague concept in terms of its meaning and application in current international law. Such situation has contributed to continual economic dependency of the Third World (TW) states on the first world as considered the more developed states. TW states face difficulty to develop their argument to demonstrate people national interest in current international economic context. Having utilised doctrinal and TWAIL approach, this paper argues that there has been a potential meaning of ESD which can be developed from fragmentation of documents in international law, particularly in the United Nations General Assembly Resolutions (UNGA resolutions), the Law of State Succession and the International Human Rights law. This meaning then shapes the fragmented sources to be a principle for TW to be used in their international economic relation, particularly in settling economic dispute relations with Western states
Indonesia Sustainability Reporting Standard: What Needs to be Improved?
Get PDFResponsible economic growth is an integral part of the goal of sustainable development. This transition to sustainable development needs to be based on a change in the mindset of business actors that business activities will be better and more sustainable if they pay attention to social, environmental and governance aspects (ESG). Recent data shows that there is a predicted increase of ESG investment by the end of 2021 by 73%, with a global fund asset being expected to reach $18 trillion in 2021. In line with this understanding, Financial Services Authority (OJK) have previously released the Sustainable Finance Roadmap Phase I (2015 - 2019) which aims to increase the understanding and capacity of business actors to move towards a sustainable economy. One significant output of the Roadmap is the issuance of OJK Regulation No. 51/POJK.03/2017 on the Implementation of Sustainable Finance, which stipulates the obligation for Financial Service Institutions, Issuers, and Public Companies to submit sustainability report. To accelerate the transition to a sustainable economy, OJK has recently issued the Sustainable Finance Roadmap Phase II (2021-2025), which focuses on ESG-based business development. This paper seeks to examine the comparison between the sustainability reporting obligation under the OJK Roadmaps with global ESG instruments, including United Nations Principles for Responsible Investment (UNPRI), Global Reporting Initiative (GRI), and the European Union Directive on Non-Financial Reporting, and to analyse whether OJK Roadmap II has accommodated the interest of global investors in light of ESG Investment, particularly reliable ESG reporting obligation by companies listed in the Indonesia Stock Exchange. It will conclude with a comprehensive evaluation of aspects needed to be improved by the existing Roadmap II to increase ESG investment in Indonesia
Interaction Between the Protection of the Rights of Indigenous Peoples and Foreign Investment: Regulation in Indonesia
Get PDFAbstract
Indigenous peoples in Indonesia are still marginalized since most of them are still poor and oppressed due to inequality in their sources of life. On the other hand, it is not uncommon for foreign investment activities to harm the surrounding environment including indigenous peoples. This article discusses the interaction between indigenous people’s rights and foreign investment regulations in Indonesia and what the Government of Indonesia must do to balance the need to improve the national economy and protect indigenous peoples. To answer these, the articles explained and mapped the international and national regulations relating to indigenous people and foreign investment. The data then analyzed to show how the Indonesian Government may improve the protection of indigenous peoples' rights in relation to foreign investment activities in Indonesia. It is found that Indonesia has already ratify International Convention that provide the protection of Indigenous people including relating to foreign investment (economic) activities. To ensure its implementation several steps must be taken i.e.: adopting an international investment agreement (IIA), bilateral investment treaty (BIT) and investment contract that provide assurance for the protection of indigenous people, ensuring the promulgation of Indigenous Peoples’ Rights Bill and Amend the Investment Law and Establish Implementing Regulations related to the Job Creation Law which enforce the concept of indigenous community protection in relation foreign investment activities.
Abstrak
Masyarakat adat di Indonesia masih terpinggirkan karena sebagian besar masih miskin dan tertindas akibat ketimpangan sumber penghidupan. Di sisi lain, tidak jarang kegiatan penanaman modal asing merusak lingkungan sekitar termasuk masyarakat adat. Artikel ini membahas interaksi antara hak-hak masyarakat adat dan peraturan penanaman modal asing di Indonesia dan apa yang harus dilakukan Pemerintah Indonesia untuk menyeimbangkan kebutuhan untuk meningkatkan ekonomi nasional dan melindungi masyarakat adat. Untuk menjawabnya, pasal-pasal tersebut menjelaskan dan memetakan peraturan internasional dan nasional yang berkaitan dengan masyarakat adat dan penanaman modal asing. Data tersebut kemudian dianalisis untuk menunjukkan bagaimana Pemerintah Indonesia dapat meningkatkan perlindungan hak-hak masyarakat adat terkait dengan kegiatan investasi asing di Indonesia. Ditemukan bahwa Indonesia telah meratifikasi Konvensi Internasional yang memberikan perlindungan terhadap masyarakat adat termasuk yang berkaitan dengan kegiatan investasi (ekonomi) asing. Untuk memastikan implementasinya beberapa langkah harus diambil yaitu: mengadopsi perjanjian investasi internasional (IIA), perjanjian investasi bilateral (BIT) dan kontrak investasi yang memberikan jaminan perlindungan masyarakat adat, memastikan pengesahan RUU Hak Masyarakat Adat dan Perubahan UU Penanaman Modal dan Menetapkan Peraturan Pelaksana terkait UU Cipta Kerja yang memberlakukan konsep perlindungan masyarakat adat dalam kaitannya dengan kegiatan penanaman modal asing.
 
Re-examining Indonesia’s Nickel Export Ban: Does it Violate the Prohibition to Quantitative Restriction?
Get PDFThe fundamental principles adopted by the WTO are free trade and trade liberalization, realized through the reduction of trade barriers like quantitative restrictions. This paper examines the parameters of a measure that can be construed as a quantitative restriction in violation of WTO law. It also examines whether Indonesia’s measures in prohibiting the export of nickel ores and imposing domestic processing requirements violate WTO law. The statutory and case study approaches were used to determine and analyze Indonesia’s measures. The parameter for quantitative restriction is imposed in Article XI: I of the GATT 1994. The parameter warrants that a measure shall be in the form of prohibitions or restrictions apart from duties, taxes, or charges. The measure must also be enacted through quotas, import or export licenses, or other measures such as import or export prohibitions. Finally, the nature of the measure must be limited in amounts. However, a measure that fulfills such parameters may not violate WTO law if it is justified under exclusionary articles under the GATT 1994. The paper concludes that Indonesia’s measures above constitute quantitative restrictions, as they fulfill the parameters above. However, there is a possibility that the measures may not violate WTO law. This is because the measures also fulfil the parameters of justifications under Article XX (g) of the GATT 1994 on general exceptions and to a lesser extent under Article XI: (2)(a) of the GATT 1994 on the exception to quantitative restrictions
THE IMPLEMENTATION OF SOVEREIGN IMMUNITY OF WARSHIPS TO UNMANNED UNDERWATER VEHICLES (UUV) UNDER LAW OF THE SEA
Get PDFAlong with the times, there have been advances in marine technology which includes Unmanned Underwater Vehicles (UUV). Some countries have started using UUVs for both commercial and military marine activities since UUVs have several advantages that ordinary ships do not have. However, the development and application of UUVs for marine purposes raises numerous problems since there isn’t clear regulation regarding UUV. Current legal instruments only explain the meaning of ship without classifying the type of ship itself. It raises a problem since it led to different interpretations between countries and the determination of legal rules for UUV. One incident related to UUV technology can be seen from the Bowditch incident where from this incident there are differences in interpretation on the classification of UUV between America and Tiongkok. Other incidents can also be seen from the entry of foreign UUVs into Indonesia waters for research purposes. From several incidents, there are main issues to the classification of UUVs which are connected to warships and their military activities. The classification of UUVs as merchant ships or warships is necessary considering that the rights of immunity owned by warships will affect the legal status of UUVs and their activities. Regulations that are still ambiguous will affect the Coastal State’s actions if there are foreign UUVs entering their sea areas, especially if the UUVs are used for military activities. Therefore, it is necessary to have clear regulations regarding UUVs including their classification and determine marine activities that allowed for the use of UUVs
THE LEGALITY OF DENMARK’S ARTIFICIAL ISLAND (LYNETTEHOLM) IN INTERNATIONAL LAW OF THE SEA
Get PDFThe Danish parliament approved the construction of an artificial island called Lynetteholm, which aims to house 35,000 residents and protect the Port of Copenhagen from rising sea levels. Construction of Lynetteholm will take approximately 50 years, and the island will be 2.6 km2 in size. Since the regulation regarding Artificial Island can only be found in the United Nations Convention on Law of the Sea 1982 (UNCLOS 1982) which is not complete regulatory support along with no other regulations that can provide specifications regarding the implementation rules for the construction of an artificial island, both provisions and prohibitions in the process of making Artificial Island. This long-term development could cause a damage towards the marine life and cause air pollution in the construction area due to heavy trucks, change in the ocean currents in the Danish and Swedish oceans due to the size of the island, and cause potential changes to the territorial sea boundaries of Denmark’s EEZ. As long as the legal regulations regarding Artificial Island have not been made specifically and in detail, large-scale and long-term construction of artificial islands that cause legal problems will continue to occur in the future. Therefore, the making of special rules regarding Artificial Island has become a real urgency at this time. Denmark has an obligation to conduct a re-assess regarding problems that may arise as well as those that are contrary to UNCLOS
THE PROSPECT OF INTERPLANETARY MISSION: ARE WE READY?
Get PDFMars exploration missions in the future will be focused on Mars Sample Return (MSR) and humans as space crew in late 2028 or early 2030 by NASA and other non-government entities, such as Space Exploration Technologies (Space X) and Blue Origin. MSR and sending humans to explore Mars raises environmental contamination issues, which are governed in law by Article IX of the Outer Space Treaty 1968 to “avoid harmful contamination.” Though there is no existing international law instrument to address this issue comprehensively, Article IX was not clear to explain harmful contamination. Thus, non-governmental entities involved in future missions to Mars face liability, especially in the case of an accident causing fatalities or adverse environmental impact for the Earth and Mars. This article examines related regulations in corpus iuris spatialis, including soft law and elaborating with astrobiological data to encourage new regulation, ensuring liability and environmental safety on future Mars missions
Aegean Sea Issue Urgency on Maritime Jurisdiction and Territorial water extension between Turkey and Greece
No full textThe Aegean sea issue is a long case that first occurred in 1950, the main issue of this case revolves on the geographical condition that has led Turkey and Greece on fighting over supremacy to take control of the Aegean sea area. The issue of both Turkey and Greece has earlier been submitted to the ICJ however, its lack of jurisdiction causes the issue itself to remain unresolved. In 2020 Greece has stated that they are looking forward to extending their territorial waters, the statement itself might become a big issue for Turkey and has further proved the urgency of actual maritime jurisdiction and real resolution towards the Aegean sea issue. The goal of this research is to clarify and find a resolution that can be used under the situation of the Aegean sea issue in both international legal theory and practice. Apart from giving clarification of possible and available Legal instruments and theories, this research will also elaborate even further on why Territorial water extension by Greece would call for an urgency, especially for Turkey. This research revealed that UNCLOS as an International law instrument still have some issues in practice of a unique circumstances issue like the Aegean Sea, and shows that in its practice both Turkey and Greece must have a good will intention to fully resolve the issue of Aegean sea to draw an end line to the long lasting issue of maritime jurisdiction over its territorial sea