Sriwijaya Law Review
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Potential Investor Claims and Possible State Defences During the Covid-19 Emergency
Full text linkSince it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements
The Legal Conundrum in the Implementation of the Convention on the Rights of the Child in Nigeria
Full text linkInternational law or treaty binds a state where such state signed, ratified acceded or domesticated same. In a monist State, ratification alone suffices for the international law or treaty to become binding whereas, in a dualist State, domestication as a condition must have complied. It is because of the peculiarities within various nations' legal systems (Monist or Dualist system). In 1989, The United Nations Convention on the Rights of the Child (UNCRC), an international human rights instrument came into force. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, only about 24 States have enacted the law for onward enforcement. Nigeria is a nation which became independent in the year 1960 comprising now of 36 states and Abuja as its Federal Capital Territory all under the Federal Government. Since its domestication as the Child Rights Act (CRA 2003) in Nigeria by the National Assembly, many States have enacted the law for onward enforcement. However, few states are yet to comply and raise a question as to whether the said CRC has a binding force in all the States of the Federation. This study aims to examine the extent of how the UNCRC and CRA are being enforced in Nigeria. This study's research methodology is purely doctrinal, where library materials such as books, articles from journals, and online articles have been carefully selected and analyzed for this research. This paper recommends establishing a global agency or organ that should be saddled with the responsibility of ensuring full compliance and enforcement of international laws or treaties
The Legal Implication of Political Defection on Nigeria’s Democracy
Full text linkThe prevalence of cross-carpeting in Nigerian politics continues to threaten the consolidation of democracy in the country. It is strengthened by the proliferation of political parties devoid of entrenched ideology or political philosophy besides attaining political and economic powers. The unusually delayed justice in defection related matters sometimes occasioned by the pile of cases before the scanty judicial umpire in the country is another block of stumbling over. The technical approach of these umpires to cases of defection or constitutional matters may not be far from being a cloak on the wheel of justice. While the elected executives at the detriment of their electorates enjoyed the freedom of assembly and association in changing their political parties after the election, the exercise of the same right by the elected members of legislative houses are subjected to certain occurrences in justification or else vacate their seats on the pronouncement of their respective leaders in the house. This historical political menace persistently thrives in the country's fledgling democracy without adequate legal instruments for effective redress. Through the conceptual approach, the study reveals that the elected executives persistently swindle the mandate of their voters with impunity while the principal officers of the parliaments freely decide who remains or exits the house on the ground of defection. It is clear that the Nigerian Anti Defection Law is inadequate in the changing political landscape of the country. This paper recommends a law reform to affect some enactments, particularly in the Constitution whereby machinery for the vacation of a seat in the parliament after defection can be beyond the powers of the principal officers, which is necessary for the attainment of socio-political orders in the country
Constitutional Rules on Waqf and Fiscal Policy Outcomes
Full text linkFiscal policy, inter alia, looks at the list of government revenues. The constitutional rules provide guidance on the list of revenues. However, the previous studies find that waqf is not considered as part of government revenues. In this study, we argue that waqf brings in a new list of government revenues. To prove this point, we select a sample of fifty-seven countries under the Organization of Islamic Countries. The constitution of each country is investigated by using content analysis. The study uses a combination of several keywords, namely “tax or taxes or fiscal obligations,†“revenues or budget or finance†and “waqf†in investigating the rules on revenues and waqf. The findings in this study are classified into five kinds of countries, namely countries that highlight government revenue and waqf in the constitution, countries that claim to recognize sharia law as the basis of the law but the waqf rules in the constitution are missing, countries that mention in their constitution that government revenues are placed under the government system, financial system, and parliament, countries that place waqf is ruled under the public finance matter, and countries that place waqf as the main policy. This finding implies that the constitutional rules lead to the view that waqf is a part of public finance that can be used as a fiscal policy tool and should be included in the state budget plan
Rethinking Indonesian Legislation on Wildlife Protection: A Comparison between Indonesia and the United States
Full text linkIn Indonesia, a crime against wildlife is still not well controlled. Several reasons are the fact that certain wildlife is still considered a threat by the community and the lack of implemented criminal sanctions. This paper compares the application of sanctions to perpetrators of wildlife crimes between Indonesia and America. Based on the Indonesian Law, Article 40(2) of the Law on Conservation of Living Natural Resources and their Ecosystems, a person who commits a crime against individual wild animals can be imprisoned for a maximum of five years and a maximum fine of one hundred million rupiahs. Meanwhile, the United States Law, the Endangered Species Act (ESA), charges wildlife criminals with criminal and civil penalties. In § 1540(a)(1) it provides that anyone who takes, imports, exports, transports or sells endangered species can be fined not more than 12,000. Also, additional criminal sanctions were imposed to revoke federal licenses, lease permits and hunting permits. This study aims to analyse criminal sanctions' enforcement in criminal cases against protected animals in courts in Indonesia and the United States to find best practices using normative legal research methods. The results show that the criminal sanctions against wildlife crimes in Indonesia have never reached the maximum sentence so that it is not sufficient to provide a deterrent effect for the perpetrators. Unlike in America, the imprisonment sanction for criminal sanctions for protected animals is still relatively weak, but fines and civil sanctions can be maximally applied
Legal Certainty of Cabotage Principle Regarding Sea Transportation in Indonesia
Full text linkShipping between domestic ports must be transported by ships with Indonesian flags and operated by national shipping companies, meaning the cabotage principle. The aim is to prevent and reduce dependence on foreign ships carrying out Indonesia's maritime territory. However, in regulating and implementing the cabotage principle, it is not sure that it can be applied absolutely, which can be interpreted as not reflecting legal certainty. This study aims to analyze the legal certainty of implementation of the cabotage principle in Indonesian territorial waters. This research is a normative study that uses legal, historical, interpretation and case approaches. The case and interpretation approaches are used to examine the cabotage principle concept in legislation and several relevant cases brought to Indonesian courts. The results shows that the regulation of the cabotage principle on sea transportation is found in the form of laws, presidential regulations, presidential instructions and ministerial regulations. However, in other various regulations, the cabotage principle does not apply absolutely (semi-protectionist) or inconsequently. On the one hand, this is because it prohibits foreign ships from operating in Indonesian territory to carry passengers and/or goods between islands or ports. On the other hand, foreign ships are allowed for other activities that do not include carrying passengers and/or goods with certain conditions and approval from the government. The application of the cabotage principle based on judges' considerations in cases submitted to the State Administrative, Supreme and the Constitutional Courts has fulfilled legal certainty according to the Shipping Law. However, the protection of national Shipping must be prioritized, and the use of foreign ships should be considerably tightened unless Indonesian-flagged vessels are not insufficiently available
Does the International Community Have Efforts to Protect the Marine Environment from Seabed Mining?
Full text linkThrough the United Nations, the international community is seriously paying attention to the use of seabed areas as regulated by the Law of the Sea Convention 1982, which states that the area and its resources are the common heritage of humankind. The 1994 Agreement has implemented chapter XI. The resources are relating to the state's interests in terms of energy exploration and environmental impact aspects. An increasing need for global electronic products by many countries in which of the components are rare minerals. Various minerals such as manganese, polymetallic nodules, and polymetallic sulphur are lying down in the seabed. However, seabed also had an essential role in keeping the marine ecosystem balanced. On the one hand, the human's need for those minerals also cannot be denied. Draft of regulations by the International Seabed Authority to manage deep-sea mining are still insufficient to prevent irrevocable damage to the marine ecosystem and loss of essentials species for the next. On the other hand, the spirit of Sustainable Development Goals 14 concerns life underwater. This paper examines deep-sea mining science from a legal perspective to protect and preserve seabed for the future generation using normative approach describing norms and principles in the Law of the Sea Convention 1982. As a result, the commercialisation of deep-sea mining violates the principle of the convention. Thus, it needs to encourage ISA to enhance the minimum requirements for all contracting parties in the future
The Implementation of Waqf as ‘Urf in Indonesia
Full text linkAs a tradition that has been practised for a long time, waqf or endowment is clear evidence that Muslims in Indonesia are developing through this worship. However, what if the waqf is in the form of a mosque, Islamic school, and grave (3M’s waqf). It is an unusual thing in the contemporary Islamic tradition, but its existence persists. Meanwhile, 'Urf as one of the legal propositions in establishing Islamic law has known the concept and has been practised for generations in suburban areas where most of the population is Muslim. This tradition is then accommodated in Law Number 41 of 2004 concerning endowment, which contains land endowment and endowment organiser (nazhir). This paper examines the tradition of endowment in Indonesian society to benefit mosques, Islamic schools, and graves. By using the historical and analytical-conceptual approaches, this paper will analyse waqf in these three forms. The results of this study can be taken into consideration by stakeholders in developing strategies for strengthening and empowering 3M's donated land to create benefits for the Indonesian since 3M’s endowment is commonly found in Indonesian society.
Resolving Office Establishment Dispute in Nigeria through Alternative Dispute Resolution Mechanism: An Evolving Regime
Full text linkThis paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades
Legal Analysis of Current Indonesia's Marine Protected Areas Development
Full text linkThis paper aims to conduct a legal analysis of the development of Marine Protected Areas (MPAs) in Indonesia. This article discusses the international legal framework and national legislation related to MPAs, progress and control, and problems in developing MPAs in Indonesia and its solutions. The international legal frameworks discussed include the United Nations Convention on the Law of the Sea 1982, the Convention on Biological Diversity 1992, and Code of Conduct for Responsible Fisheries 1995. Subsequently, the Indonesian legislation analyzed includes the Act on Conservation of Living Resources and their Ecosystems, the Act concerning Fisheries, the Act concerning the Management of Coastal Areas and Small Islands, and the Act on Marine Affairs. The progress and control of the establishment of MPAs in Indonesia have now reached the target area of more than twenty million hectares. Apart from the success of these achievements, Indonesia also has problems in developing MPAs. Current problems related to MPA development include dualism of permits, conflicts over zoning and regional spatial planning, multiple interpretations of penal sanctions, and overlapping management authorities between government agencies. The solutions offered to solve these problems include synchronizing marine tourism permits, integrating zoning and spatial plans into one regional government regulation, imposing the most severe criminal sanctions for perpetrators of destroying marine ecosystems, and transfer of full authority over the management of seven marine protected areas to the Ministry of Marine Affairs and Fisheries