Indonesian Journal of International Law
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Legal Reform Project, Access to Justice and Gender Equity in Indonesia
No full textThis article is to discuss the impact of legal reform project between Indonesian and Australian government in assisting women, the poor and those living in remote areas to access the judiciary in Indonesia. Through the program access to the Religious Courts for divorce cases, for example, women are able to document their role as female heads of household. The document is necessary to facilitate access to the Indonesian Government pro-poor programs such as cash transfers, free health treatment, subsidized rice or enrolment of children at state schools. This article argues that the access to justice program in Religious Courts has positive impacts on gender equity development in Indonesia. This argument is based on AmartyaSen’s conception of development that must go well beyond “the accumulation of wealth and the growth of gross national product and other income-related variables.” Thus, the process of development is really all about removing “the unfreedoms” from which the members of society may suffer. Access to the Religious Courts program for women, the poor and marginalized groups, which was initially supported by the Australian Government through its agencies, has “opened” Indonesian government mind on how to address obstacles in removing “the unfreedoms” of gender discrimination caused by the family laws
Implementation of the 1958 New York Convetion in Several Asian Countries: The Refusal of Foreign Arbitral Awards Enforcement on the Grounds of Public Policy
No full textThe Convention on the Recognition and Enforcement of Foreign Arbitral Awards Year 1958 or better known as the New York Convention 1958 until now has ratified by 125 countries including Asian Countries, like Indonesia, China, India, Japan, Korea, and Singapore. Through this convention, the arbitral awards can be implemented in the countries where the assets executed by the mechanism from each country. So, the domestic court of the party of the convention given the rights to refuse the recognition and enforcement of the foreign arbitral awards with the reason of public order. That reasons then be the problems where the civil law system countries will interpret the public order in a different way with the common law system country
How Low Can Labor Law Go? Informalisation of Work and It’s Impact Upon Woman Workers in Indonesia
No full textThis article discuss about the development of labor law since the reformation and debating that non-formal job has been the main art of the labor law reformation from 1998, where made three new labor law, there are in 2000 and 2004. This article divided in three sections, the first is to explain about Indonesia and the labor law system in Indonesia, the second is discussing the impact of the new labor law, and the third is analyzing the impact from of the non-formal job, in this case are women and children in general, and in the East Java’s plantation project as a case
The Right to a Fair Trial and Combatting Terrorism: The Case of Indonesia
No full textAfter the 9/11 attack, the US government called upon global war on terror (GWOT). Then terrorism has been considered as a threat of global security. It is, therefore, has led both national and international concern under US hegemony. Furthermore, it has affected the proliferation of many national counter-terrorism laws. The terrorist attacks have threatened Indonesia over years. Under the act No.15/2003 jo No.1/Prp/2002 the Indonesian government has successfully conducted prosecutions to the terrorism perpetrators. However, it is identified that there are such violations regarding to international human rights rules and standards. The concern in handling terrorism demands a balance concern between security treatments and human rights. Thus, the challenge’s today are how to maintain the rights to a fair trial for every accused, the safeguard against abuse of power and the commitment of international community to human rights, while also preserving the capacity to national and international security concerns. The article 14 of International Covenant on Civil and Political Rights (ICCPR) enshrines a norm of International Human Rights law which protects individual from the unlawful and arbitrary curtailment of other basic rights and freedoms (a fair trial), which the most prominent are the rights to life and liberty of the person. The civil and political rights are categorized as non-derogable rights, it means that any derogation measures inconsistent with the State’s other obligations under international human rights law is prohibited. Thus, this paper aims to discuss whether and to what extent the right to a fair trial may be compromised in the name of security? Does the fair trial standard can be sacrificed to prosecute terrorism
Extra-Territorial Torture and Inhuman Treatment towards Suspected Terrorists Committed By the U.K. and the U.S. Military Actions
No full textSince the attack to the World Trade Centre in 11 September 2001, the world has raised their awareness to any of serious allegation of terrorist activities. Many steps have been taken by the United Nations and the states to make such legislatives in their national and international level in order to prevent and combat terrorism. The world really condemns what the terrorist have done and put their maximal effort to punish them as well as to protect the innocence from experiencing such dangerous cause of such activity. The hatred of terrorists brings many actions brought by the nations, especially the United States, as a revenge of the painful feeling of those who were left by the victims. It often leads to the act of torture and inhuman treatment done by the official to the terrorist detainees. This paper will focus on the prohibition of torture and inhuman treatment both in the United States and the United Kingdom and the United States extra-territorial actions in Guantanamo Bay and Abu Ghraib prisons and also the United Kingdom’s extra-territorial conducts in treating prisoners in Iraq in relation to Al-Skeini case. Both actions of the states might be considered as a violation of national and international human rights rules because of the existence of torture in treating the terrorist detainees during their military operations. Therefore, it is important to examine whether human rights law applies extra-territorially to such violations. This study would apply the Convention Against Torture and Other Cruel Inhuman, or Degrading Treatment or Punishment (CAT) 1984, the International Covenant on Civil and Political Rights (ICCPR) 1966 and the Inter-American Commission of Human Rights (IACHR) with respect to the United States actions and the European Convention on Human Rights (ECHR) 1950, the CAT and the ICCPR for the United Kingdom’s actions.
Sejak terjadi serangan terhadap Pusat Perdagangan Dunia (WTC) pada 11 September 2001 dunia telah meningkatkan kesadaran mereka terhadap setiap tuduhan serius dari kegiatan teroris. Berbagai upaya telah dilakukan oleh Perserikatan Bangsa-bangsa (PBB) dan Amerika Serikat untuk membuat badan legislatif di tingkat nasional maupun internasional dalam rangka pencegahan dan penanggulangan terorisme. Dunia benar-benar mengutuk apa yang telah dilakukan teroris dan mengerahkan upaya maksimal untuk menghukum mereka serta untuk melindungi yang tidak bersalah dari kegiatan yang berbahaya tersebut. Kebencian terhadap teroris banyak memunculkan tindakan dari negara-negara, terutama Amerika Serikat untuk membalas dendam perasaan menyakitkan mereka yang ditinggalkan oleh para korban. Hal tersebut sering menyebabkan tindakan yang mengarah pada penyiksaan dan perlakuan tidak manusiawi yang dilakukan petugas terhadap para tahanan teroris. Tulisan ini akan berfokus pada larangan penyiksaan dan perlakuan tidak manusiawi di Amerika Serikat dan Britania Raya, serta tindakan ekstrateritorial Amerika Serikat di Teluk Guantanamo dan penjara Abu Ghraib dan juga perilaku ekstrateritorial Britania Raya dalam memperlakukan para tahanan di Irak dalam kaitannya dengan kasus Al-Skeini. Kedua tindakan negara tersebut dapat dianggap sebagai pelanggaran terhadap aturan nasional dan internasional hak asasi manusia karena adanya perlakuan penyiksaan terhadap para teroris selama operasi militer mereka. Oleh karena itu, merupakan hal yang penting untuk memeriksa apakah hukum hak asasi manusia berlaku ekstratertorial untuk pelanggaran tersebut. Penelitian ini akan menerapkan Konvensi Tentang Pencegahan Penyiksaan dan Perlakukan kejam Tidak Manusiawi lainnya, atau Perlakuan Merendahkan Martabat atau Hukuman (CAT) pada tahun 1984, Perjanjian Internasional tentang Hak Sipil dan Politik (ICCPR) tahun 1966, Komisi Inter-Amerika tentang Hak Asasi Manusia (IACHR) sehubungan dengan tindakan-tindakan Amerika Serikat dan konvensi Eropa mengenai hak asasi manusia (ECHR) pada tahun 1950, CAT, dan ICCPR atas tindakan Britania Raya
Yurisdiksi Negara vs. Yurisdiksi Ekstrateritorial
No full textUnder general principle of law, every State has exclusive jurisdiction within its own territory. The State jurisdiction would cover inter alia jurisdiction over its resident nationals and non-resident nationals, including that of the aliens, the subjects of which are now under consideration of this article. However, such jurisdiction is not an absolute one, rather it is subject to certain limitations imposed by international law. The internatinal instruments such as Vienna Conventions 1961 and 1963 for instance are both governing such limitations by creating extrateritorial jurisdiction, in which Diplomatic and Consular Missions maye exercise it in the receiving State
Access to Essential Medicine Issues and The Doha Declaration: contents, the legal status and the problems with implementation
No full textThe idea of the Doha Declaration was background by the protest of the developing countries who think the TRIPS Safeguards is not clear and not multi interpretation. The developing countries are trying to find a interpretation instrument to the TRIPS Safeguards that fulfill the requirements of international law, especially the Vienna Convention which set the Treaty Law and the negotiation legislative process based on the WTO decision making framework. In Doha Declaration, the developing countries reach the main purpose to find the explanation to the TRIPS Safeguards interpretation. Even in the future, the difference of the economic level, technology, and the interests of the developing countries will be the one to trigger the debate of the patent medicine protection based on the WTO provision and the influence on the essential medicine access. The best results from the debate will highly dependant to the will of the parties to find the solution which that is not taking sides to one of the state party of the WTO
Strategi Indonesia dalam Menghadapi Tirani Perdagangan Bebas
No full textIn Indonesia, the implementation of dumping policy based on the Customs Act Number 10 Year 1995 and its regulation. However, this Act was regarded insufficient, the Indonesian Government therefore created the Import and Repayment Duties of Antidumping Regulation Number 34 Year 1996. This Regulation reffered to the provisions under Article VI of the GATT 1994, which is Multilateral Trade Agreement (MTA) in the GATT/WTO system. To implement the GATT/WTO obligations, on the October 10th 2000, Indonesian Ministry of Industrial and Trade under its Provision Number 427/MPP/Kep/10/2000, established the Indonesian Antidumping Committee (Komite Anti Dumping Indonesia/KADI). This committee responsible to execute the process of acomplishment of Antidumping. Although the Indonesia Government has published a technical guidance for the economic actors to fill out complaint regarding dumping case to KADI, yet a new set of further Antidumping Regulation is needed for certainty of law
Kewenangan Perwakilan RI di Luar Negeri
No full textVienna Convention on Diplomatic Relations has become universal declaration for its jurisdiction system and has been ratified by all nations in the world reciprocity principle has become the major drive in enabling all parties to exercise the convention. In the establishment of diplomatic relations between states, all states represent as the sending state as well as the receiving state for diplomatic missions. Therefore, each state will grant additional privileges, immunities, and protection to all diplomatic agents assign in the receiving state. The rising number of states and international organizations influenced the diplomatis mission in its relations and interaction with state actors in the receiving state. Hence, the functions of a diplomatic mission consist of representing, negotiating, protecting, promoting and ascertaining as well as reporting all aspects (economic, politic and socio-culture aspects). The recent agenda is to protect Indonesia’s citizens and legal entities, particularly concerning Indonesia labour and its citizen by politcally, humanitarian and legally approaches. The Act No. 37 Years 1999 on Indoensian Foreign Relations has become guidance for Department of Foreign Affairs of Indonesia to protect its citizen abroad. The establishment of the Directorate of Protection of Indonesian Citizens and Legal Entitites is a concrete step in order to protect Indonesia’s citizens and legal entities as Government effort and commitment to reshape diplomatic missions’ image to be a home for all Indonesian citizen