Indonesian Journal of International Law
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HISTORIC FISHING RIGHTS AND THE EXCLUSIVE ECONOMIC ZONE
No full textThe exclusive economic zone (EEZ) regime under Part V of the LOS Convention grants coastal States the exclusive right to fisheries within 200 nautical miles (M) of their coasts. However, the EEZ seems to recognise the exclusive fishing rights of coastal States at the expense of historic fishing rights. Yet, is this an accurate reading of applicable law? Despite the fact that historic fishing rights are not expressly recognised in the LOS Convention, many States still claim these rights in areas beyond their EEZ. China, for example, has consistently made claims that it has historic rights over the fisheries resources within the nine-dashed line in the South China Sea. This article seeks to explore this issue, by analysing the relationship between the EEZ regime and historic fishing rights, and identifying the circumstances where historic fishing rights can exist alongside the EEZ regime. The article will also distinguish between historic waters and historic fishing rights; as well as discuss the practice of States and precedents of international courts and tribunals in relation to historic fishing rights
The Protection of Celebrity Name in China: After the ‘乔丹’ Case by the SPC of China
No full textThe Supreme People’s Court (SPC) case of ‘乔丹’, brought by Michael Jordan against Qiaodan Sports, is a landmark case over the protection of the right to the personal name in the People’s Republic of China (PRC). In the retrial proceeding, the SPC gave eight exhaustive explanations to the disputed questions and eventually reversed the lower court’s decision. After studying the judgment, this article finds that a famous foreign name can be protected by Chinese Trademark law only when it satisfies three conditions: First, the specified name enjoys a certain popularity in China and is well-known to the concerned public; second, the concerned public uses the specified name to refer to the original person of that name; and third, there has already been a stable match between the specific name and the original person of that name. Although China mainly adopts the “right to name” for the legal protection of celebrity names, the right to name is a kind of personal right, difficult to protect economic benefits derived from celebrities’ names fully. Comparing Germany’s extended protection model of personality rights and the United States model of “right of publicity,” this article suggested that China tries to introduce the United States model to protect the celebrity name’s right
TRADITIONAL KNOWLEDGE – THE CHANGING SCENARIO IN INDIA
No full textIndia is a party to the CBD, which came into force on 29 December 1993. It has three main objectives, namely the conservation of biological diversity, the sustainable use of its components and fair and equitable sharing of benefits arising out of the utilization of genetic resources. CBD envisages that the benefits accruing from commercial use of TK have to be shared with the people responsible for creating, refining and using this knowledge. Art 8(j) of the CBD provides for respecting, protecting and rewarding the Knowledge, Innovations and Practices (KIP) of local communities. Realizing the need to ensure that the holders of TK, which is not still in the public domain should be able to get the benefits arising from the use of such knowledge, an enabling provision has been made for protecting the TK in the Biodiversity Act, 2002. Indian Patents (Amendment) Act, 2005 also deals indirectly with the protection of TK. The main objective of protection would be to obtain recognition and some compensation for the commercial use of TK outside the community or the society, which generated it, either by excluding the unauthorised use by third parties or by ensuring a right to remuneration (or benefit sharing) for such use
THE ROOT CAUSE OF TRAFFICKING IN PERSONS FOR THE PROTECTION STRATEGY IN THE ROHINGYA CRISIS
No full textThe statelessness of the Rohingya exacerbates the risk of trafficking in persons. Such risk gets bigger for the Rohingya to face during the coronavirus pandemic as safety restrictions and control are emboldened for health concerns. This paper is not to argue for the Rohingya to be or not to be nationally considered. It is due to that being nationally considered does not necessarily guarantee any persons free from trafficking in persons. Instead, this paper is to identify the root cause in order to construct the protection strategy. Thus, the international human rights are theoretically expressed in naturalistic views which are distinguished from positive rights that are inherently applied in Myanmar to bring out the identity conflict that has been the source of crisis between the minority and the majority. Also, a normative perspective of the research in this paper is expected of how international law should function, especially among the ASEAN member states. The ASEAN Convention Against Trafficking in Persons, Especially Women and Children are incorporated as legal instruments throughout the identification of the root cause and the construction of the protection strategy for the Rohingya to investigate the trafficking in persons in the Rohingya crisis. It shows that statelessness and trafficking in persons are inseparable under the migration in the form of irregular movement. Furthermore, it is found that the root cause of trafficking in persons in the Rohingya crisis is the inefficiency of legal systems, because the provision cannot quite defend them
The Myth of the Integrity and Universality of Law of the Sea: Incidents at Sea by Non-Parties of UNCLOS
Full text linkScholarship often explains the structure of the law of the sea as a contestation and coordination of the coastal states versus the international community and the user states in terms of inclusivity and exclusivity. They tend to underscore inclusivity, as the ocean is an integrated domain. This argument is also based on the embedded idea of universality. However, such an assumption should not be taken for granted and it necessary to clarify the significance and limitations of this universality. As a part of a study for this purpose, this paper focuses on cases of incidents at sea caused by non-parties of UNCLOS that were informed by specific regional tensions and histories. It will empirically study the cases of Turkey, Venezuela and Iran, where they undertake harassing or provocative actions against foreign ships and installations. It will then reflect the significance and limits of the theories of law of the sea
A Multilateral Regime for Space Resource Exploration and Utilization
Full text linkThe launched of Sputnik marked the beginning of space race. Since then state always tries to develop its technology to conquer outer space, including its natural resources. Outer Space Treaty and Moon Agreement affirm that outer space as the common heritage of mankind. Therefore, any states can not claim sovereignty over the territory nor natural resources. Yet, in 2015 the United States passed the Space Resource Exploration and Utilization Act which authorize its private entities to exploit and entitles them with series of rights, including the right of ownership over space resource. Thus, this paper examines the concept of the “common heritage of mankind” (“CHM”) in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) and elaborates on the possibility of a multilateral regime for space resource exploration and utilization. Part 2 discusses the concept of the CHM and its application; it then followed by an in-depth analysis of the future multilateral regime in Part 3. Part 4 concludes that a multilateral regime, instead of a unilateral regime, shall be in the best position to balance the needs for space resource exploration and the interests of developing countries
THE OPERATION OF UNMANNED VESSEL IN LIGHT OF ARTICLE 94 OF THE LAW OF THE SEA CONVENTION: SEAMANNING REQUIREMENT
Full text linkRapid technological changes in the shipping industry offer advantages and present serious challenges to maritime security and safety. This is how we should respond to the emerging development of unmanned vessels, all the more so because the existing international legal framework was not developed to accommodate their operation at sea. Similarly, the International Maritime Organization has taken this seriously by forming groups to assess such operations’ compatibility with existing maritime conventions. One of the biggest challenges that unmanned vessels pose to the international legal framework concerns the sea manning requirement. This requirement is explicitly stipulated in the Law of the Sea Convention and elaborated in some conventions within International Maritime Organizations’ purview. Against this backdrop, this article attempts to answer whether the unmanned vessels operation is in contravention of international law, particularly provisions on the sea manning element of a ship. To that end, this article will (i) elaborate on the flag state obligations in Article 94 of the Law of the Sea Convention, (ii) explain and identify the Generally Accepted International Rules and Procedures concerning sea manning, and (iii) describe the efforts of the International Maritime Organization in addressing this phenomenon
Borders and Boundaries: Importing Asset Recovery “Duty Free” in Transitional Justice Processes
Full text linkAs new conflicts emerge, transitional justice practitioners are finding it increasingly imperative to incorporate the concepts of asset recovery into transitional justice processes and mechanisms. However, for its success, the pillar of transitional justice relating to international asset recovery needs strengthening. Yet a granular understanding of this dimension remains a critical blind spot in the transitional justice and human rights conversation. This paper brings the dynamics of asset recovery as an emerging aspect of human rights law to the fore. In terms of methodology this paper relies on Sharp’s critically motivated problem-solving theory. The paper suggests that for transitional justice to be holistic it should include asset recovery in its accountability mechanisms. Hopefully, it humbly contributes a new angle toward the understanding of what transitional justice can and could become
Celebrating the 25th Anniversary of UNCLOS Legal Perspective: The Natuna Case
Full text linkThe 25th Anniversary of UNCLOS was commemorated in early February in Jakarta, just one month after the Chinese fishing vessels and coast guard entered the Indonesia’s EEZ and exploited its natural resources. From the Indonesian side, this China’s encounter has indeed violated the Indonesia’s sovereign rights over its EEZ as well as the breach of Indonesia’s sovereignty by undermining and intervening in Indonesia’s right under international law in exercising legal enforcement in its own jurisdiction. Moreover, the Indonesian government has consistently and persistently rejected the nine-dash line claims by sending official protests through diplomatic notes. The protest also exerts Indonesia’s firm and clear position that Indonesia is not a claimant state to either the sovereignty or territorial disputes in the South China Sea, and therefore will not engage in any negotiation. Furthermore, Indonesia would never recognize the nine-dash line claim since it does not have a legal basis recognized by international law. In contrast, the Indonesia’s sovereign rights are guaranteed by the UNCLOS, as the Indonesia’s EEZ had been acknowledged and registered under the UNCLOS. At the same time, Indonesia will be increasing the frequency of patrols in Natuna waters, and fisheries activities as it is Indonesia’s rights. This Article attempts to identify and describe the Writers’ views over the Natuna case from the legal perspective. The responses of the Indonesian government against the claim are also briefly discussed
The International Committee of the Red Cross: an Evaluation
Full text linkThe International Committee of the Red Cross (ICRC) is explicitly mentioned in the 1949 Geneva Conventions and the 1977 Additional Protocols thereto. These explicit references to the ICRC entail respect for and recognition of the ICRC as the oldest humanitarian institution. However, this explicitness does not imply, suggest or confirm legal superiority of the ICRC over other humanitarian institutions, nor does it make the ICRC the exclusive humanitarian organization. Humanitarian assistance can be legally and legitimately undertaken by other humanitarian organizations as well. The practical influence of the ICRC is greater than that of any other NGO. Arguably, the survival of the ICRC as the pre-eminent provider of humanitarian assistance is testimony to the fact that the “practicalities” of international law are as important as treaties. The practices of the undisputed subjects of international law – states and international organizations – have paved way for a half-subject of international law – the ICRC – to enhance its status