Indonesian Journal of International Law
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Military Application of Unmanned Underwater Vehicles: In Quest of A New Legal Regime?
Get PDFThe Unmanned Underwater Vehicles (UUV) is commonly used for current military operations. There are three legal issues arising out of it, namely (i) legal status; (ii) immunity; and (iii) configuration and rule of the road. The international community has also witnessed the impact of the unregulated UUVs military operation. The article will examined these legal issues in the perspective of international and national law and States practice. To enrich the discussion, legal scholars and practitioners views on UUV will be included. The capability of UUV will also be discussed to increase the comprehension of its role in military operations. Based on existing regulations, either in the international or national law, UUV is not expressly regulated. Furthermore, numerous State react to and/or conduct military application of UUV differently. Hence, it can be suggested that in preventing more incidents, UUVs need to be regulated, either in new regulations or amendment to existing regulation. If it is not possible, states can be urged by the international community and other relevant stakeholders to adopt best standard or practice in their national regulation
The Role of Boundaries and Borders in Ocean Governance: Reflections on Three Promising Transborder Ocean Governance Models
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Transforming Landscapes: How ODR reshaping the prospect of dispute settlement in a connected world
Get PDFThe existence of law and culture has bring significant forces to human life, since them both shaping and influencing the emergence of values and norms in communities and societies. The restless development of human history has forged law in dynamic relation with culture, resulted in changing laws, values and practices. Beyond politics, present life is also bringing fresh challenges for law and culture globally, such as: the increased use of technology in law and human life. One of the big leap issue is the changing in the culture of trade, which shifted to non-face-to face or e commerce, which offer easiness and practicality in conduct trade regardless the non-barrier border. Indeed, there is still a lack of effective legal regimes and processes capable to meet the needs of globalization. The increased possibilities to access information, to form online relationships, and to conclude online transactions have introduced a new dimension of legal conflicts, which is electronic disputes. Regarding this issue, the needs of effective dispute settlement, which is “fitting to the forum”, is necessary, and online dispute resolution (ODR) is the answer. Therefore this paper aims to find how ODR reshaping the prospect of dispute settlement and what obstacle may be faced by the implementation of ODR. The method use in this paper is juridical normative with conceptual approach, statute approach and comparative approach. The result of this paper show that ODR able to reshape the prospect of dispute settlement, since it may offer fairness by providing transparent system of negotiation, trust in content offer by ODR system and security develop in ODR system in the process of dispute settlement. Meanwhile, there are also obstacles that may face by ODR, which are technology issue and local culture issue, which means the acceptance of ODR practice in society, especially when applied to developing country
Moving Cultures: Engaging Refugee and Migrant Culture Rights in International Heritage Law
Get PDFIn thinking about the rise of the Anthropocene, an important facet of this looming new era remains under-explored: namely, how cultural identity, and its tangible and intangible markers, are to be renegotiated and protected. Notwithstanding that the origins of international heritage law lie in protecting heritage in times of crisis (wartime and natural or man-made disasters), regimes under UNESCO for safeguarding cultural heritage in international law are ill-prepared for the challenges of the Anthropocene. A particular question that needs to be considered is the protection in international law of cultural heritage and identity when communities are displaced from their homes. Because international cultural heritage law is connected to state territoriality, states have the ultimate authorizing power over the meanings and uses of cultural heritage. In the past, this power has at times been used to the detriment of minority groups contesting the majoritarian state. But how might this power play out in a context where communities are forced to move? What, if anything, can international heritage law do to ensure that these populations, who have already lost their homes and livelihoods, can maintain their cultural identity through the protection of their heritage? I argue that international law’s separation between the cultural and biological facets of human existence presents a major obstacle to safeguarding the cultures of migrant and refugee groups, ultimately frustrating the very objectives that this separation was meant to achieve, namely, the protection of these populations. Only by reintegrating biology and culture can international law create the means for reimagining civilization in the Anthropocene
The Responsibilities Between Providing Archipelagic Sea Lanes Passage and Protecting Marine Environment: A Case in Republic of Indonesia
Get PDFState responsibility in international law is only charged to an independent state. Such responsibility can be created due to the rules of international law regarding the state responsibility and numerous important agreement signatories. Part XII of LOSC 1982 clearly states that “States have the obligation to protect and preserve the marine environment”. On the other hand, agreement might cause the issue of state responsibility, such as archipelagic sea-lanes in Indonesia. The obvious issue has raised serious problem, for instance, overlapping responsibility handled by the government of Indonesia under its implementation. On one side, Indonesia must preserve the marine environment by setting the marine protected areas (MPA). At the same time, Indonesia must ensure the existence of archipelagic sea lanes (ASLs), including its legality for international shipping. This make Indonesia face a dilemma, since its territorial seas also lies withincoral triangle. The recent solution undertaken by the government is prioritizing the existence of ASLs amongst with the rights of cross voyage, taking into account that ASLshave been set out prior to MPAs as well as the recognition of the sovereignty of archipelagic state created at the same time with the obligation of guaranteeing the right of crossing the ASLs. Thus, a plan for designating environmental protection area withASLs, the assignment should not interfere with it. Therefore, to accommodate both interests, The Indonesian government must immediately deliver to the International Maritime Organization (IMO) regarding the condition of marine environment in which ASLP is closely confronted with MPAs to regulate special arrangements when the ships cross the are
The Singapore Transboundary Haze Pollution Bill in the context of ASEAN regionalism and cooperation
No full textThe Southeast Asian region has experienced transboundary haze on an almost annual basis for decades. ASEAN has been the platform for regional cooperation and collaboration for regional haze mitigation since 1985. ASEAN’s main legally-binding instrument for this purpose is the 2012 Agreement on Transboundary Haze Pollution (ATHP). Despite this, haze episodes continue to persist until present times. This paper analyses recent legal developments related to transboundary haze management among the three main affected countries; Indonesia, Malaysia and Singapore. Particularly, it examines Singapore’s Transboundary Haze Pollution Act, an extra-territorial act that extends criminal and civil liability to anyone causing or contributing to haze in Singapore. It also analyses Indonesia’s ratification of the ATHP, which followed soon after Singapore unilaterally passed their Act. Finally, it considers Malaysia’s indecisiveness in deciding its next legal move in the face of these developments among its neighbours. The ASEAN Way, a set of behavioural or procedural norms that govern regional engagement, prescribes non-legalistic procedures and non-interference of sovereign rights, among others. This paper uses the framework of the “myth” of the ASEAN Way, popularly argued by Nischalke in 2000, to explain the changing positions of the associated states towards legal recourse related to transboundary haze. It argues that ASEAN member states can choose whether or not to adhere to the ASEAN Way in order to preserve crucial economic interests, without suffering any consequences. Hence, shifting national interests among these three states over time can likewise explain shifting attitudes and compliance towards certain ASEAN Way norms
THE LEGAL ANALYSIS OF “TEORI KEDAULATAN NUSANTARA” TOWARDS THE NEW CONCEPTION OF INDONESIA AIRSPACE SOVEREIGNTY
Get PDFArt. 1 Chicago Convention of 1944 confirms that every state has a complete and exclusive sovereignty over the airspace above its territory. This arrangement gives the highest role of state in controlling air transportation based on state sovereignty principles. The concept of airspace sovereignty faced challenges with the introduction of international air transportation liberalization through deregulation provisions. Such liberalization policy is later known as ‘open sky policy’. Such open sky policy includes the establishment of single market such as Single European Sky dan ASEAN Single Aviation Market. The liberalization led to a situation where sovereignty concept has been regarded from a different perspective. It is widely argued that the smooth operation of new forms of international cooperation requires a more flexible perception of sovereignty. This study wants to analyze the concept of Indonesia airspace sovereignty. A theory of Indonesia airspace sovereignty that ever born is the "Teori Kedaulatan Nusantara" by Priyatna Abdurrasyid in the 1970s. "Teori Kedaulatan Nusantara" based on two doctrines i.e. the doctrine of necessity and doctrine of right of self-preservation that is the core of military/security aspect. In the other hand, what has become clear in the last few decades is that the economic aspects of airspace sovereignty have dominated change. This paper argues that there is a continuing trend away from the absolute airspace sovereignty regime towards something less. It is submitted that preservation theory cannot be sustained in the Indonesia airspace sovereignty doctrine. This paper asserts that the new paradigm of international air transport drives Indonesia towards the release of some aspects of Indonesia’s airspace sovereignty doctrine
THE SOUTH CHINA SEA UNCLOS TRIBUNAL AWARD 2016: WHAT IT HAS CHANGED AND WHAT IT DOES MEAN TO INDONESIA
Get PDFSince The Permanent Court of Arbitration issued its award on 12 July 2016 it have raised many controvertion. Almost all Submissions are decided in favour of the Philippines. The Award, as expected by many scholars, is not intended to solve the core dispute of the South China Sea ‘what maritime features belong to whom’, since the very nature of this kind of dispute is not under the Tribunal competence. The sovereignty over disputed features shall be left to the claimant States for the resolution. Nevertheless, the Tribunal Award has not only clarified the dispute but also partially solve the core dispute. The legal clarification is expected to contribute to future negotiations among the claimant States concerning the core (sovereignty) dispute. This Article attempts to identify and describe what has been changed by the Tribunal Rulings and what has been solved. The implication of the Ruling on Indonesia’s legal interest is also briefly discuss