Indonesian Journal of International Law
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The Archipelagic Status Reconsidered in light of the South China Sea and Düzgit Integrity Awards
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Foreign Direct Investment Restriction Policy as an Effort to Empower Micro, Small and Medium Enterprises
Get PDFForeign Direct Investment is one of the important means to increase a country’s economic growth through equitable development. However, countries such as Indonesia, often put restrictions on their foreign investment policies. The purposes of this research are: 1) to explain the restrictive policies which are imposed upon foreign investments in Indonesia and to compare them to those of other countries in Asia; 2) to explain the practical impact of such restrictive policies on foreign investments in Indonesia. The author uses a qualitative-descriptive research method. The research is also conducted through a juridical normative approach. This research shows that: 1) Restrictions on foreign investment is regulated under the Presidential Regulation of the Republic of Indonesia No. 76 of 2007 on Criteria and Requirements for Formulation of Business Fields Closed to Investment and Business Fields Conditionally Open to Investment; 2) In its implementation, Presidential Regulation No. 76 of 2007 has not yet been able to boost sustainable economic growth evenly via the empowerment of MSMEs or domestic investors
INDONESIA LEGAL ANALYSIS OF IUU FISHING AND TRANSNATIONAL ORGANIZED FISHERIES CRIMES: LOOPHOLES AND PROPOSED MEASURES
Get PDFThe 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
The Postition of Village Peace Judges in the Resolution of Traditional Offences within the Tolaki Community in South-East Sulawesi
Get PDFThis research is aimed at finding the appropriate method for Tribe Leaders (as Judges), guardians of local wisdom in resolving conflicts of interest particularly for indigenous people (Tolakinese) in Southeast Sulawesi. Legally speaking, this effort is essential in gaining legitimacy, hence based on customary law (Adat Law); village judges effectively resolve conflict in a faster, simpler and cheaper ways that are accepted by the community compared to the national criminal justice system. Nowadays, various conflicts often arise in communities, which cause economic, political, religious, ethnic, and self-esteem complications leading to conflicts of interest. Sadly, the Tolaki community is not exempted from this reality. This study seeks to offer an appropriate method of resolving conflict by using a consensus based approach to reach decision so as to create peace for the parties. This concept of consensus in deliberation has been practiced in Tolakinese society for a long time. This study found weaknesses and obstacles in its application of the substantial aspects; i.e. the role of village judges is limited by positive law; as well as from a structural aspect: the lack of institutional strengthening. The application of such methods can create a holistic and integrated policy in controlling and optimizing the source of collective strategic resources for the greatest benefit for greatest number of people
Challenges for Indonesia in Case of Liberalization of Trade in Services in The ASEAN Economic Community
Get PDFCooperation among ASEAN countries formed since 1967 through Bangkok Declaration. In development, ASEAN agreed to establish ASEAN Community in 2020. This relationship was upgraded within the ASEAN Summit in Singapore in 2007 which agreed on the ASEAN Charter to strengthen the position and legal status of ASEAN in realizing the cooperation among ASEAN countries, and as a guide in ASEAN Community formation, the Blueprint is prepared. One of the pillars of ASEAN Community is the establishment of ASEAN Economic Community, which talk about liberalization of trade in services. The implementation of the trade liberalization in ASEAN will increasing and provide convenience and also increased intra-ASEAN market access as well increasing transparency and speeding up the adjustment of regulations and standardization of domestic. Indonesia already ratified ASEAN Charter with Law No. 8 of 2008. Therefore, Indonesia is obliged to implement the provisions of ASEAN Charter. Treaty on liberalization of trade in sevices has been initiated in ASEAN Framework Agreement (AFAS) in 1995 and Indonesia also ratified by Presidential Decree No. 88 in 1995. Law No. 7/2014 on Trade, also regulates the trade in services as Indonesia’s commitment within the ASEAN Economic Community. The liberalization of trade in services within ASEAN framework is a challenge for Indonesia to prepare human resources or skilled menpower with competence to compete with menpower from other ASEAN countries. This situation can also be used as an opportunity for Indonesia to prepare and compete with other ASEAN members but on the other hand they can be vast potential market for ASEAN countries
Small Claims Court Mechanism in Business Dispute Resolution as an Attempt to Apply Fast-Track Basis in the District Courts and its Comparison with Some Countries
Get PDFThe implementation of Small Claims court mechanism according to Supreme Court Regulation (PERMA) Number 2/2015 concerning Procedures for Small-Claims Court Resolution recently granted a breakthrough in the civil justice system particularly in Indonesia. It was reached by the Supreme Court in order to reduce the court burden against cases with disputes below IDR 200 million rupiah. The disputes resolution by Small Claims court mechanism is done by a single judge assisted with registrar and must completed within 25 working days, the final decision is binding, thus unable to ask for appeal or judicial review. This article tries to comprehend dispute resolution through Small Claims mechanism in several state courts, such as Medan district Court, Palu, and the Jember. The study, also aims to comprehend the comparison of Small Claims mechanism in Indonesia and small claims in the Netherlands and UK in business disputes resolution. The study employs a normative juridical method. Based on the studies, the implementation through Small Claims court mechanism in Indonesia has been carried out in accordance with the Supreme Court Regulation Number 2/2015. Comparison on business dispute resolution using Small Claims court mechanism in Indonesia and in Netherlands and UK proof that the proof mechanisms whether in Indonesia, Netherlands and United Kingdom relatively simple. Legal remedies for Small Claims decision in Indonesia and the verdict in the Netherlands and in England are limited. The distinction is that the case number in Indonesia is higher than the number in the Netherlands and England
Indonesia’s Obligation to Protect Archaeological and Historical Objects at Sea based on UNCLOS 1982
No full textThe 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
DISCLOSURE OF THIRD-PARTY FUNDING ARRANGEMENTS AND THE EXISTENCE OF THIRD-PARTY FUNDERS IN INTERNATIONAL INVESTMENT ARBITRATION
Get PDFThird-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.
SELF-DETERMINATION AND TERRITORIAL INTEGRITY REVISITED: REFLECTING CHAGOS ADVISORY OPINION AND ITS COMPARISON WITH WEST PAPUA
Get PDFThe 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
FINDING LEGITIMACY ON EUROPEAN UNION TRADE POLICY TO LIMIT THE IMPORT OF PALM OIL: WILL INDONESIA SURVIVE (AGAIN)?
Get PDFIn 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 provision