Indonesian Journal of International Law
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The Effectiveness of Climate Change Litigation as a Venue to Uphold State Climate Change Obligations in Indonesia
Full text linkClimate change has increasingly raised concerns regarding the continuity of human life. As a consequence, there are certain obligations upon governments to conduct climate change mitigation and adaptation measures. However, there remains the issue of ensuring States comply with their obligations. Under the Paris Agreement, a recent international legal instrument concerning climate change, compliance is one of the matters addressed. The Agreement introduces a “Compliance Committee”. The Agreement, however, underlines that the Compliance Committee’s actions will be limited to non-adversarial and non-punitive measures. Therefore, it remains unclear whether non-compliant States would indeed adhere to the Compliance Committee. Recently, climate change litigation has begun to develop around the world. This form of litigation also encompasses lawsuits from citizens against States, concerning such State’s obligations in mitigating and adapting to climate change. With such development, a question arises, which is “How effective can climate change litigation be in upholding Indonesia’s climate change obligations?” In answering such question, this research will use the normative juridical method, consisting primarily of bibliographical research. The composition of this research will firstly consist of an explanation of the research background, including an explanation on current State climate change obligations, which leads to the main research problem, and a comparison with prior research. Next, an analysis upon recent developments in Indonesia, along with a brief comparison with global developments will be conducted, which will then be used in answering the research problem. The paper will then conclude with conclusions and suggestions
The identification of victims of human trafficking: definition, challenges and States’ obligations
No full textHuman trafficking has been an ever-longing international problem, which violates human rights in various forms of crime. There are many root causes which explain the existence and the rapid rise of human trafficking, including the emerging of supply and demand culture. This raised effort against human trafficking in the international community. These effort is focused on the prevention against trafficking, protection of victims, and prosecution of criminals. Human trafficking itself may be defined by activities revolving around it, the means used, and the purpose of the exploitation itself. The main challenge when encountering human trafficking is the ability to identify the forms of human trafficking, which requires reasonable measures of multidimensional support and protection. However, the obligations provided in several established legal instruments, for example Trafficking Protocol, are sometimes ambiguous, and subsequent State practice shows that they have had rather limited results. Therefore, a better approach is necessary in combatting human trafficking. This might include allowing courts to certify as such any victims who are identified during the proceedings, allowing a judicial or administrative determination to be made based on the application of law enforcement, border control or other officials who encounter victims in the course of investigations or prosecutions; and/or allowing a judicial or administrative determination to be made based on the application of the alleged victim personally or some representative, such as a representative of a non-governmental organization
Improving Indonesia's Commitment to Open Government Through Online Petition
No full textSince 2011 Indonesia has joined as a member of Open Government Partnership, which is an international platform for countries committed to making their government more open, accountable, and responsive to citizens. However, the implementation of open government in Indonesia is criticized by some researchers because of the simplification of meaning. Open government is often described as uploading all government information into the official government website.Therefore, alternative policies are needed to ensure the openness of the government. This study offers the idea of creating an online petition system officially administered by the House of Representatives as an alternative forum. The petition system offered is different from the conventional online petition system, because the conventional system does not have clear legal umbrella and is managed by Non-Governmental Organizations. By comparing the advantages and disadvantages of the addition of the authority to the Parliament, it is expected that the system will strengthen the oversight function by the Parliament. Nevertheless, the alternative solution offered in this study is highly dependent on the political will of the government and the House of Representatives in making clear and legal rules
THE SHIFTING SANDS OF SPACE SECURITY: THE POLITICS AND LAW OF THE PEACEFUL USES OF OUTER SPACE
Full text linkThis article argues that the content of the legal term “peaceful purposes,”as used in international space law is changing. Peaceful Purposes as understood throughout the bulk of the Space Age has encompassed not only the UN Charter’s prohibitions on the use of force, but also a number of customary international law principles that enhanced it beyond mere non-aggression. Through an examination of state practice with regards to the military uses of outer space, this article concludes that the legal content of peaceful purposes is eroding towards an alignment with “non-aggressive” as understood in the law concerning the use of force. Specifically, this article argues that geopolitical and technological changes are encouraging states to pursue disruption in the space environment rather than stability, and this has been matched with state practice and rhetoric that exhibits that states are moving toward more offensive, rather than defensive, stances in the space environment
Recognition to the Customary Law of Indigenous Peoples in the ILO Convention 1989: Practices from Ecuador and Norway
Full text linkRecognition of the customary law of indigenous people is an integral part of the recognition to their existence as a whole. The 1989 ILO Convention concerning Indigenous and Tribal People in Independent Countries is an international instrument which obligates its parties to recognize indigenous people as well as its customary law. Ecuador and Norway are parties to the convention which will be used as examples for the implementation of the convention in recognizing respective indigenous people and laws. The indigenous people of both countries have similar history of struggles in obtaining the state’s recognition, and at the end they’re recognized through the constitution of their respective states. In the process of recognition, however, Ecuador and Norway have different but unique and typical characteristics with different results. These different characteristics and results are related to the different situations and conditions of the indigenous people and the political environment in Ecuador and Norway
International Convention Vs National Interest: Contestation among Indonesian Government Institutions on Underwater Cultural Heritage Conservation
Full text linkIndonesia’s underwater cultural heritage has tremendous potential to enhance the understanding of Indonesia’s maritime culture history. But, this cultural heritage has a vulnerability due to various factors that can cause cultural heritage to be extinct. Indonesia’s vast waters have substantial underwater heritage, but the government has constraints to ensure its protection. In Indonesia, the authority for underwater cultural resources found in the sea involves two government agencies that have different views on the underwater cultural heritage. On one hand, the cultural heritage is treated as “cultural goods” and on the other hand it is treated as “economic goods”. The first purpose-protected perspective is supported by the law on cultural preservation and the principles agreed upon in the international convention on the protection of underwater cultural heritage. While the second perspective is supported by the presidential decree that is based on the national interest to improve the welfare of the community. This article explains how the two government institutions are trying to compete and negotiate to win their respective agendas
Human Rights Regime: Between Universality and Cultural Relativism, An Indonesian Experience
No full textUniversal Declaration of Human Rights 1948 come with the idea that human rights are all universal. Vienna Declaration and Programme of Action 1993 strengthen the universalism of human rights by claiming that and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. And here is the problem. Indonesia is a member of the United Nations. Indonesia adopted UDHR 1948 and made it as the primary source of National Human Rights Provision (Law No. 39/ 1949). However, in practice, there are a lot of challenges in implementing universal human rights in Indonesia. Cultural relativism exists. This paper, therefore, will explore the complexity of Human Rights regime in Indonesia among various cultural relativism surrounding it by using legal and normative approach. The research found that international human rights law in Indonesia can not be implemented in the same manner as applied in the Western world. Instead, it needs to consider local and regional values, as well
Justifying Extraterritorial Regulations of Home Country on Business and Human Rights
Full text linkThe 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
SASI AND ITS RELATION TO THE ECONOMIC DEVELOPMENT AND MARINE PRESERVATION (CASE STUDY: RAJA AMPAT)
Full text linkRaja Ampat, West Papua, Indonesia, is one among many marine tourism spots such as Derawan, Bunaken, Wakatobi and Tiga Gili. Raja Ampat is known for its diversity, rich coral reefs and marine resources. Raja Ampat’s characteristic is not only based on their beauty of marine natural resources but also its tradition, culture and living indigenous law. The existing indigenous law in Raja Ampat is called “SASI”. This tradition and living law has an important relation in sustaining tourism activities and the variety of marine activities that can be carried out in the ocean, particularly in marine protected areas on Raja Ampat. This writing is meant to analyze Sasi; to examine Sasi and its relation to economic development; and to analyze the impact of Sasi’s implementation on marine preservation for marine sustainability. It appears that Sasi’s implementation as the indigenous living law on Raja Ampat offers positive advantages including restoration and livelihood of the marine environment (incorporating with their marine natural resources). Therefore, the existence of Sasi on Raja Ampat is able to maintain the economic progress and marine environment sustainability
Rule of Law with Asian Characteristics: cultural insights from the Occupy Central Movement in Hong Kong
Full text linkThis article uses the Occupy Central social movement in Hong Kong as a natural experiment to consider whether Asian culture influences the understanding and exercise of fundamental rights. In an earlier article, the author explored the relationship between Chinese culture and the rule of law as measured by the World Justice Project Rule of Law Index. This article relies on the earlier work but expands the analysis to consider Asian culture while at the same time focusing specifically on the fundamental rights aspect of the rule of law index. This article shows a strong correlation between lower scores for Asian countries on Individualism, as measured by the Hofstede Dimensions of Culture, and scores on fundamental rights, protection for freedom expression, and protection for freedom of association, as measured by the World Justice Project Index. This correlation is reflected by the Occupy Central movement. Although the movement was an exercise in fundamental rights, its purpose was to promote the rights of the community and the protests were carried out in a manner to reduce the impact on community rights When the movement ended, the negative consequences for the community were a significant reason, and the leaders of the movement were ultimately prosecuted for inciting a public nuisance