Padjadjaran Journal of Law
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Principle of Neutrality and the Obligation to Prevent International Humanitarian Law Violations: A Case Study of US Military Assistance in Russia-Ukraine War
Full text linkAlthough international law forbids states to use force against each other, every state has an obligation to stop the ongoing violation of international humanitarian law. Consequently, the relevance of the traditional law of neutrality is questionable and often considered obsolete in contemporary armed conflict. The United States of America introduced the doctrine of qualified neutrality. The doctrine allows other states to do something when there is a threat or ongoing violations of the peace and security of humankind. The United States has commonly justified its military assistance to one of the warring parties using the doctrine as in the current Russia-Ukraine War. The United States provides vast military assistance to Ukraine, consisting of weapons and specialized military training to stop Russian aggression. This study aims to assess the qualified neutrality doctrine from an international law perspective and whether the United States can still preserve its neutral status or become a co-belligerent of Ukraine. This study argues that qualified neutrality will not change the status of a neutral state into co-belligerent if it does not involve any use of force measures or, otherwise, these measures shall fall within the framework of the UN Charter and require authorization from the UN.DOI: https://doi.org/10.22304/pjih.v10n1.a
The European Union Charter of Fundamental Rights: Strengthening the Participation in the European Union
Full text linkThis study employed legal and political analysis to assess the significance of the European Union Charter of Fundamental Rights to strengthen the democratic legitimacy of the European Union. There is a lack of comprehensive analysis of the contribution of the European Union Charter of Fundamental Rights to enhance the democratic legitimacy of the European Union. Therefore, this study tried to address the gap by focusing on specific provisions of the Charter that are designed to promote participatory democracy and to foster a closer relationship between the citizens and the European Union. The study also explored the legal challenges and complexities surrounding the interpretation, application, and balance of fundamental rights in the European Union, especially considering recent verdicts of national constitutional courts and their implications for the role of the European Court of Justice. The study aims to identify potential benefits of the Charter, such as improving the relationship between the EU and its citizens and strengthening the European Union’s legal system and legitimacy by safeguarding citizens’ fundamental rights.DOI: https://doi.org/10.22304/pjih.v10n1.a2
Developing Effective Procedures for Public Participation in Spatial Planning Regulation in Indonesia: Lesson Learned from Australia
Full text linkPublic participation is a crucial aspect of spatial planning, serving to achieve sustainable development objectives. The Indonesian government has recognized this fact andincorporated public participation in its spatial planning lawsand regulations. However, procedures for involving the public have been criticized for lacking genuine participation, highlighting opportunities for public input only being offeredformally. Meanwhile, public participation is considered a significant component of spatial planning regulation in Australia, particularly in Victoria. The government has involved the public in various stages of the planning process, including creating a planning scheme, issuing planning permits, and completing planning agreements. Based on the established procedures under current Australian legislation, this study aims to provide a practical solution by examining and contrasting the role of public participation in spatial planning regulation between Indonesia and Australia. This study concluded that Indonesia might consider adopting Australia's strategy and setting up planning panels to regulate spatial planning. Planning agreements can also be advantageous, particularly for large-scale or mega projects that significantly negatively impact the environment and local communities. DOI: https://doi.org/10.22304/pjih.v10n3.a5
Sexual-Violence Offenses in Indonesia: Analysis of the Criminal Policy in the Law Number 12 of 2022
Full text linkIn 2022, Indonesia enacted the Law on Sexual Violence Offenses. The Law criminalizes ten acts of sexual violence and categorizes them as criminal offenses. The Law aims to prevent criminal offenses of sexual violence through deterrence, coordination, and monitoring by central and regional law enforcement agencies. The Law adopts both sanctions and treatment in the matter of criminal sanctions. The Law distinguishes types of punishment based on principal and additional penalties, including against corporations. Based on the severity of the penalty, the Law includes indefinite and definite sentences. However, the Law remains weak on restitution that should be action sanctions rather than criminal sanctions and lack of corporate criminal liability regulation. The severity of the penalty that was adopted by the Law should be in the form of indefinite sentences to provide the maximum deterrent effect. In addition, there is a lack of synchronization between the Law and other laws, including the Laws on Human Trafficking, Pornography, and the Elimination of Domestic Violence.DOI: https://doi.org/10.22304/pjih.v10n1.a
Identifying the Use of Smart Enforcement in Citarum River Environmental Law Enforcement
Full text linkThe Citarum River is one of the most strategic rivers in West Java Province, Indonesia. It has been a major water supplier for various agricultural and industrial needs. Unfortunately, human activity increases around the watershed. Thus, the water quality of the river decreases due to pollution. The central and regional governments launched the Citarum Harum program to reduce pollution in the Citarum River. One of the main issues of the program is related to environmental law enforcement. A lengthy process, high case costs, and light sanctions make law enforcement through the courts ineffective. This study discusses whether the environmental law enforcement in the Citarum River is smart enforcement. The study used normative empirical legal analysis with a juridical approach. This study concludes that the government should plan the law enforcement by means of Smart Enforcement strategy to make the enforcement more effective and efficient. It will provide clearer directions to law enforcement officers in the law enforcement. In addition, the efforts to carry out effective and efficient environmental law enforcement need more human and financial resources.DOI: https://doi.org/10.22304/pjih.v10n1.a3
A Discourse of the Indigenous Peoples' Rights and Their Contributions to the Indonesian Development: Lessons Learned from New Zealand
Full text linkThe struggles of indigenous peoples in both New Zealand and Indonesia to gain legal recognition remain ongoing. This study focuses on two central aspects. Firstly, it examines the historical-legal journey of indigenous peoples in their quest for legal acknowledgment. Secondly, it makes a comparative analysis with New Zealand, highlighting the potential contributions that indigenous peoples can provide to their respective countries. The study follows a legal research methodology, linking existing issues with authoritative sources and real-world situations. The findings reveal that in New Zealand, indigenous peoples possess a legal standing, albeit not entirely comprehensive. Conversely, Indonesian regulations do not provide strong legal support for indigenous people's rights. Despite their limited rights, indigenous peoples in New Zealand have made significant contributions to the nation's development. Additionally, the article contends that given their fundamental role in the founding of the Indonesian State, it is time for indigenous peoples to receive proper recognition for their substantial contributions to the nation's development.DOI: https://doi.org/10.22304/pjih.v10n3.a
The Inadequacy of Legal Provisions on Workplace Sexual Harassment in Nigeria and Ghana: The Way Forward
Full text linkSexual harassment has been a persistent problem in workplaces in Nigeria and Ghana. The legal provisions in both jurisdictions generally focus on the definition of “sexual harassment” without remedies for the harassment, sanctions, enforcement procedures, anti-sexual harassment policies, complaint procedures, etc., that can control sexual harassment in the workplace. The article examines the scantiness and inadequacy of legal provisions on workplace sexual harassment in Nigeria and Ghana, suggesting a way forward. The doctrinal research method has been deployed, focusing on relevant Nigerian and Ghanaian legal provisions. The article considers the organization theory of sexual harassment, using it as a framework, and then contributes to the discussion by arguing that the inadequacy of local laws on workplace sexual harassment is a possible factor for the prevalence or frequency of workplace sexual harassment. The article recommends comprehensive legal provisions to control workplace sexual harassment. Relying on some of the items in the guidelines made by the Indian Supreme Court on workplace or work premises sexual harassment in the case of Vishaka v State of Rajasthan, the article suggested using a comprehensive law that can control workplace sexual harassment. If the suggestions are followed, the incidences of sexual harassment will reduce drastically in workplaces in Nigeria and Ghana. Workplace or work premises sexual harassment in Nigeria and Ghana and the relevant legal provisions have been used to set the article’s limit and to project the discussion herein.DOI: https://doi.org/10.22304/pjih.v10n3.a
An Evaluation of the Selection Mechanism of Constitutional Judges in Indonesia and South Korea
Full text linkThis paper aims to evaluate the appointment process of Constitutional Court Judges in Indonesia. A guarantee of the judiciary independence is a foundation of a modern democratic state because a judge’s appointment depends on a selection process. Using normative and empirical legal study, the study shows that Indonesia does not have a standardized selection process among the proposing organs regarding assessment and procedure. The selection mechanism is decentralized. It relies on the proposing organs respectively. On the other hand, South Korea has a more standardized selection process, especially on confirmation hearings organized by the National Assembly. The Korean model, which emphasizes the National Assembly confirmation hearing, has strongly contributed to the selection process because it ensures transparency and accountability. The study suggests that Indonesia should seriously consider establishing a confirmation hearing system for justices like South Korea. A more transparent selection will reduce the number of corrupt public officials (justices). Unfortunately, the current Korean system also needs improvements. The suggestions include (1) separation of the ethical and professional competence evaluation phase, (2) extension of the confirmation hearing duration, (3) enhancing the requirement for witness attendance and submission of data, and (4) prohibition of the use of personal hearing data. DOI: https://doi.org/10.22304/pjih.v10n1.a
The Rule of Attribution for Peacekeepers Post-Dutch Supreme Court’s Rulings on Mothers of Srebrenica in 2019: A Discourse on Presumptive v. Preventive Interpretation
Full text linkPeacekeeping operations have become an integral component of the United Nations in promoting global peace and security. Yet, as demands increase to hold peacekeepers accountable for their misdeeds, the legal principle of attribution within the framework of the law of responsibility remains ambiguous and difficult to define. Hence, this study aims to contribute to the discourse on the attribution of the Peacekeepers' conduct, especially on the presumptive v. preventive interpretation of Article 7 Draft Articles on Responsibility of International Organizations. Under the presumptive interpretation, the peacekeeper’s action is presumed to be attributed to the UN; however, attribution can be rebutted if Troop Contributing States (TCS) exercise control over the peacekeepers. In contrast, preventive interpretation argues that attribution must be determined by which entity, TCS or the UN, has the power to prevent the alleged conduct. This study analyzed how the Dutch Supreme Court’s rulings in 2019 approached the question of attribution toward the Dutch Battalion during the mission of UNPROFOR. The Supreme Court found that the action of the Dutch Battalion was attributable to the Netherlands since the Netherlands fulfills the elements of effective control as governed under Article 8 ARSIWA. Moreover, the Supreme Court rejected the preventive interpretation earlier endorsed in the Nuhanovic case. This study employed a normative juridical approach. This study argues that the Court’s rulings on presumptive interpretation are aligned with the practices of the UN’s peacekeepers and the intended purpose of Article 7 DARIO, which emphasizes attribution on factual consideration.DOI: https://doi.org/10.22304/pjih.v10n2.a
The Effect of Extra Judicial Settlement in Criminal Cases Based on the Principle of Ultimum Remedium
Full text linkThe principle of ultimum remedium suggests that criminal sanctions should be used as a last resort when other legal avenues have been exhausted. The principle is not explicitly stated in the Indonesian Criminal Procedure Law and is often considered a mere slogan in practice. Recently, there has been a growing trend of resolving minor criminal cases outside the formal judicial process. Instead of imposing criminal penalties, conciliation or restorative justice methods are being used. In this context, restorative justice involves reaching an agreement that resolves conflict between the offender and victim. Although not specifically regulated by the Criminal Procedure Law, there has been a shift in how criminal law enforcement views minor cases, allowing for reconciliation or peace agreements. The introduction of restorative justice mechanisms by law enforcement agencies has made the practice of reconciliation more flexible, moving away from its initially punitive nature. Additionally, including peace within restorative justice indirectly strengthens the ultimum remedium principle, ensuring that criminal sanctions are truly used as a last resort in certain minor cases.DOI: https://doi.org/10.22304/pjih.v10n3.a1