Honorary Article: Damos Dumoli Agusman Self-Executing and Non Self Executing Treaties What Does It Mean?
Main Articles: Damilola S. Olawuyi Regulating Unconventional Oil and Gas Production: Towards an International Sustainability Framework
Adam Fenton and David Price Forbidden Funds - Indonesia's New Legislation for Countering The Financing of Terrorism
Rachminawati Asean Human Rights Declaration: A New Form of Universalism
VARIOUS ASPECTS OF INTERNATIONAL LAW I Patron Indonesian Journal of International Law (alphabetically)
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Abdul Bari Azed, Profesor UNHCR Adolf Warrouw TNI AL RI Agus Haryanto MKK Law Firm Anang Nugroho WIPO Ardius Zainudin, Laksamana Muda TNI ABNR Law Firm Arizal Efendi Bungaran Saragih, Profesor Cita Citrawinda Djenal Sidik Suraputra, Profesor Fahmi Idris Harry P. Haryono Hikmahanto Juwana, Profesor Ismail Suny, Profesor Juwono Sudarsono, Profesor Mochtar Kusumaatmadja, Profesor Nugroho Wisnumurthi PurnomoYusgiantoro, Profesor Rokhmin Dahuri, Profesor
Contributor of Indonesian Journal of International Law (IJIL) can be classified into 3 category : 1) Patron, with a contribution of ten (10) millions rupiah or more for individuals, or twenty- five (25) millions rupiah or more for the institution; 2) Prime Contributor, with a contribution of five (5) millions to ten (10) millions rupiah for individuals until twenty five (25) millions rupiah for institutions; 3) Contributor with the contribution under five (5) millions rupiah for individuals or under ten (10) millions rupiah for institutions.
The facilities available are: Patron, the inclusion of names permanently in IJIL; Prime Contributor, namely the inclusion of names in over 10-25 times of IJIL; and Contributor, namely the inclusion of names in IJIL for 1-10 times. Jurnal Hukum Internasional Vol. 11 No. 3 April 2014 Indonesian Journal of International Law ISSN 1693-5594
Editorial ...... 1
Honorary Article: Dr. Iur. Damos Dumoli Agusman Self-Executing and Non Self Executing Treaties What Does It Mean?...... 320
Main Articles: Dr. Damilola S. Olawuyi Regulating Unconventional Oil and Gas Production: Towards An International Sustainability Framework ...... 345
Adam Fenton, LL.M and David Price, LL.M Forbidden Funds – Indonesia’s New Legislation For Countering The Financing of Terrorism ...... 363
Rachminawati, SH, MA. Asean Human Rights Declaration: A New Form of Universalism...... 396
General Articles: Ridwan Arifin, SH, MH. Empowering International Cooperation’s Role in The Follow of Assets of Corruption’s Result...... 414
Book Review ...... 423 International Law Making...... 426 International Law in News...... 452
Volume 11 Number 3 April 2014 i i Jurnal Hukum Internasional Jurnal Hukum Internasional Indonesian Journal of International Law
Honorary Editors Professor Mochtar Kusumaatmadja Professor Hasjim Djalal Professor D. Sidik Suraputra Professor Sumaryo Suryokusumo Professor Sri S. Suwardi Professor Etty R. Agoes Boer Mauna Nugroho Wisnumurti Harry P. Haryono
Board of Editors: Professor Hikmahanto Juwana Professor A. Zen Umar Purba Adolf Warouw Emmy Y. Ruru Professor Marsudi Triatmodjo
Principal Editor Adijaya Yusuf
Editor in Chief Melda Kamil Ariadno
Senior Associate Editor Arie Afriansyah
Managing Editor Fatma Muthia Kinanti
Editorial Staff: Samirra Assovie Afghania Dwiesta Andika Immanuel Simatupang Dayinta Harumanti Fitri Amelina
Editorial Address: Centre for International Law Studies – Faculty of Law University of Indonesia Kampus UI, Depok 16424 Telephone: 62-21-7871617 Fax: 62-21-7871617 e-mail: [email protected] ii ii Volume 11 Number 3 April 2014 Editorial
Indonesian Journal of International Law (IJIL) has received many high quality articles including that is now becoming our honorary article. Dr Damos Dumoli Agusman has written about the nature of treaty whether it is self executing or non self executing treaty. Discussion of this issue has been touched by many experts of international law and become a very hectic topic since heavily related to the national interest of each State especially on how a State perceive the application of a treaty into their national law arena. In Indonesia this topic has brought certain problems in the field especially among the international law experts and the constitutional law experts in the subject on monism and dualism.
We also have other article talks about the sustainable framework of oil and gas production which is written by Dr Damilola S. Olawuyi, an oil and gas law expert from the prominent natural resources research center in Nigeria. Other article discussed about the effort to counter the financing of terrorism and ASEAN Human Rights Declaration.
The range of topics which given in this issue shows us that international law is actually influencing almost every aspect including those of private sectors. International law then continues on playing a very significant role in the world’s community to keep international relations in balance.
Have a very good reading !
Melda Kamil Ariadno, Ph.D.
Editor in Chief
Volume 11 Number 3 April 2014 iiiiii 319 Jurnal Hukum Internasional
SELF-EXECUTING AND NON SELF EXECUTING TREATIES WHAT DOES IT MEAN?
Damos Dumoli Agusman*
Abstract
This article examines the concepts of self executing treaties and non-self executing treaties. These two concepts are inadvertently related to the dualist and monist theory of international law. They also relate to the question of direct applicability and municipal validity of treaties. This article will show that non-self executing treaties are not always analogous with the concept of dualism under international law. Likewise, treaties might presumably be self executing even in dualist states. It is therefore imperative to acquire an understanding of these two concepts by discerning and analysing them. Such understanding will provide clarity to the question of dualist transformation theory in regards to the municipal validity of treaties. This article aims to explore these two concepts, in particular their main ideas, how they relate and attempt to affect the theoretical problem of monism versus dualism with regard to treaties. This article traces the origins of the concept of self-executing treaties by examining it under American law and the European Union legal order as well as relevant decisions by international courts. This article will then move to examine various scholars’ suggestion to establish criteria for non-self executing treaties.
Keywords: self executing treaty, the law of treaties
I. INTRODUCTION The concept of non-self executing has been discussed intensively by scholars worldwide and it has been admitted that it is impossible to pro- vide a satisfactory global and at once useful definition of what is meant by it. Whether a treaty is or is not self-executing is arguably thought to be a domestic law question. It would thus vary from state to state, depending on different legal institutions and political considerations. 1 Meanwhile, there is a growing call to restrict the domestic discretion in determining the non-self executing nature of the treaties.
* The Author acquired its Doctoral degree on International Law from the Goethe University of Frankfurt and currently the Secretary to Directorate General for Legal Affairs and Treaties, Ministry of Foreign Affairs, Indonesia. This Article is entirely his own personal and academic views. [email protected] http://perjanjian-internasional.blogspot.com 1 Thomas Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National and International Law’, RdC (1992-IV), 368.
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The concept of non-self executing treaties is commonly associated and confused with the notion of dualist stance toward treaties. Under dualist theory, treaties bind on states, not in states. The treaty needs to be translated (transformed) into domestic legislation first. It cannot be directly applied domestically. Since dualism does not allow the self- executing effect of a treaty in the domestic law, it is easily held that non-self executing is nothing but dualism. On the other hand, self- executing treaties are always seen as the product of monism since under this theory treaties bind “on” as well as “in” states in a manner that they can directly take effect in domestic law without requiring national legislations. The present article shall not explore in detail the problem and the controversial legal construction underlying the concept as practiced by states. It shall only explore its main idea, how it relates and attempts to affect the theoretical problem of monism versus dualism with regard to treaties. Despite the fact that the two notions do interface, it is neces- sary to determine whether the question of self-executing and non-self- executing shall be dealt with on the one hand, as an inherent part of monist-dualist rubric, or on the other hand, shall be treated differently and independently. The two notions are inadvertently regarded along the same lines of argument, and to some extent involve the monist-dualist debate due to a common feature i.e. the critical role of domestic legislation to deter- mine the validity of treaties under municipal law. The two concepts re- spectively involve the requirement of legislation and may therefore lead to a similar indistinguishable effect. Therefore, for some scholars, the notion of non-self-executing and self-executing becomes a question of the domestic status of a treaty i.e. how and when a treaty may become valid under municipal law. It is a self-executing one when it requires no legislation and it is not when it requires legislations. In the case of the latter, the judiciary cannot directly enforce its provisions in the absence of implementing legislation. It is therefore commonly said that non- self-executing treaties have no domestic law status at all. Confusion then arises when the two problems are pursued from the same premise by which it may be induced that non-self-executing trea- ties, as they require legislation, refer to the concept of ‘transformation’
Volume 11 Number 3 April 2014 321 Jurnal Hukum Internasional that is familiar to dualism. The ambiguous and confusing term ‘self-ex- ecuting’ used in the American debate refers to both ‘municipal validity’ (related to the adoption-transformation process) and ‘direct implemen- tation/enforceable’ for which the absence of legislation is a key point. Furthermore, it is also said that the distinction between self-executing and non-self-executing treaties is one of domestic law only. In either case, the treaty remains binding as a matter of international law.
II. Origin of the Concept of Self-Executing Trea- ties The notion of self-executing and non-self-executing treaties origi- nated in and was developed by the American legal system more than a century ago2 when US Supreme Court Judge Marshall dealt with the case of Foster vs. Neilson.3 The case determined that the Treaty between the US and Spain on Amity, Settlement and Limits was non-self-execut- ing. The reason was that the phrase - ‘shall be ratified and confirmed’ - contained therein was the ‘language of contract’ and that the legislature should execute the contract before it can become the rule for the Court. Thereafter, the case Sei Fujii vs. State4 ruled that the California Alien Land Law was invalid as it discriminated against Japanese landowners and therefore was in conflict with the human rights provisions of the UN Charter. The case raised questions whether or not the provisions of the UN Charter invoked were self-executing. Since then, the doctrine has become highly controversial and draws scholarly attention, includ- ing from outside the US.5
2 Yuji Iwasawa, ‘The Doctrine of Self-Executing Treaties in the US, A Critical Analy- sis’, 26 Va. J. Int’l. L. (1985-1986), 627. 3 Foster v. Neilson, 27 U.S. 253 (1829). 4 Sei Fujii v. State, 217 P.2d 481 (1950). 5 Some European scholars consider that the notion of non-self-executing rules is to a certain extent doubtful and may give a false impression. These scholars include Ru- dolf Bernhardt, Bruno Simma, Michael Bothe, see discussion in Tunkin and Wolfrum (eds), Walter Rudolf, ‘Incorporation of International Law into Municipal Law’, in Grigory Tunkin and Rüdiger Wolfrum, International Law and Municipal Law (1988), 40-46. American scholars also discourage the use of this notion, such as Henkin who sees the notion as a distortion of the US historic constitutional jurisprudence, see Louis Henkin, ‘Implementation and Compliance: Is Dualism Metastasizing?’ 91 Am.
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The debate intensified when a proposed constitutional amendment, the so-called ‘Bricker Amendment’ (sponsored by then Senator John W. Bricker), was submitted and considered by the US Senate in the 1950s. These amendments would have imposed restrictions on the scope and ratification of treaties entered into by the US radically and would have declared that a treaty shall become effective as domestic law in the US only through the enactment of legislation. The proposed amend- ment failed in gaining support and was halted in 1954. The proposal would have replaced the established principle of ‘treaties as the law of the land’, which has been traditionally understood by earlier scholars as ensuring their faithful observance without the aid or intervention of legislation on the part of the States.6 The controversial debate revived in the Medellin case7, where the US Supreme Court held that the judgment of the ICJ in the Avena case8 was not self-executing. While acknowledging that the obligation of the US under Article 94 of the UN Charter to comply with the Avena judg- ment is a matter of international law, the Supreme Court found that the language used in the Charter i.e. ‘undertake… to comply’ instead of ‘shall’ and ‘must’ was only a commitment on the part of the UN Mem- bers to take future action through political branches to comply with an ICJ decision. The case has generated further uncertainty with regard to the question of the domestic law status of non-self-executing treaties as the Court has not made a clear distinction between the lack of domestic law status and lack of judicial enforceability.9
Soc’y Int’l L. Proc. (1997), 517. Myers S. McDougal finds that the notion is essen- tially meaningless, and that the quicker it is dropped from our vocabulary the better it is for clarity and understanding, see Lawrence Preuss, ‘The Execution of Treaty Obligations Through Internal Law-System of The United States and of Some Other Countries’, 45 Am. Soc’y Int’l L. Proc. (1951), 102. 6 Samuel B. Crandall, Treaties, Their Making and Enforcement (1916), 153. 7 Medellin v. Texas, 552 U.S. 491 (2008). 8 Avena and Other Mexican Nationals (Mexico v. United States of America), ICJ Re- ports (2004), 12 (Judgment of 31 March 2004); see also Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), ICJ Reports (2009), 3 (Judgment of 19 January 2009). 9 ASIL, ABA/ASIL Joint Task Force on Treaties in US Law, Report (16 March 2009), 11-12.
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The manner of American courts applying non-self-executing rules which tends to leave their interpretation and application to the politi- cal organs of the government - the President or Congress - and applies whatever decisions these organs may make, convinced some scholars to equate the concept with nothing but the doctrine of ‘political ques- tions’.10 The political question doctrine deals with the question of whether or not the court system is an appropriate forum. As the courts have authority only to hear and decide legal questions, a case that is a political question will be declared non-justifiable and ultimately pro- hibits the courts to hear and decide it. The concept of self-executing treaties, well known in the US, un- derwent a transforming conception in Europe. 11 European scholars and practitioners term the notion as ‘direct applicability of treaties’ and were initially seeking references from the PCIJ in Danzig,12 where it is held that the Danzig-Polish agreement provided a right of action for Danzig officials. The Court declared that the parties to a treaty might provide rules creating individual rights and obligations, enforceable by the na- tional courts. Since then, self-executing treaties were regarded in Europe as those creating individual rights enforceable by the courts. Direct ap- plicability presupposes first of all that the treaty can take effect within do- mestic law.13 It suffices to say that a treaty, as determined by international law, is directly applicable when it creates individual rights. The notion ‘direct effect’ resembling ‘self-executing’ has been de- veloped through European Community law with its own (supranation- al) characteristics. The concept was introduced by the European Court since the 1960s when it held in the Van Gend en Loos case14 that Article 12 of European Economic Community Treaty produces direct effects and creates individual rights which national courts must protect. Based 10 Quincy Wrights, ‘National Courts and Human Rights: The Fuji Case’, 45 AJIL (1951), 64-65; Buergenthal (note 1), 382. 11 Yuji Iwasawa, ‘The Doctrine of Self-Executing Treaties in the US, A Critical Analy- sis’, 26 Va. J. Int’l. L. (1985-1986), 629. 12 Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 PCIJ Series B, No. 15. 13 Albert Bleckmann, ‘Self-Executing Treaty Provisions’, in Rudolf Bernhardt, Ency- clopedia of Public International Law, vol. 4 (2000), 374. 14 Case 26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration, (1963) ECR 1.
324 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties on national and European jurisprudence, a directly applicable concept of treaties has developed in accordance with the special nature of the European Union legal order, which should be distinguished from in- ternational law. It is presumed as a general rule, that all European laws have a direct effect as it lays down the principle that its subjects are the citizens who shall enjoy rights under the treaty. A treaty is directly ap- plicable if a national court and national authorities can directly apply it; if it establishes subjective rights and duties for the individual; and if the individual can rely on it before national courts and national authori- ties. The rationale of the direct effect nature of European law is based on dual vigilance15, where the Commission may bring an action against its member states and individuals may demand the application of Euro- pean law from their domestic courts.
III. Domestic Enforceability vs. Municipal Validity The developments mentioned above inadvertently created, to an ex- tent, diverging understandings about the legal nature of self-executing and non-self-executing treaties, which relates to the distinguished ques- tions of direct enforceability and municipal validity. Foster vs. Neil- son concerns the domestic judicial enforcement of treaties16 while the ‘Bricker Amendment’ is about municipal validity, which was suggested to apply the transformation mode. The Medellin case seems to grasp the two concepts and leave them undistinguished. Thereafter, the ques- tion of non-self-executing treaties has been discussed as covering both direct enforceability and municipal validity of treaties. It is then argued that if the issue of non-self-executing treaties does not confine to a restrictive circumstance or if it is considered from the
15 Stephen Weatherill, Cases and Materials on EU Law (2007), 96. 16 Henkin underlined that Chief Justice John Marshall in the case did not contemplate that some treaties might not be the law of the land. Marshall only found that some promises by their character could not be ‘self-executing’, see Louis Henkin, ‘U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker’, 89 AJIL (1995) 2, 346-347. Henry said that the Chief Justice merely spoke of one case in which a treaty would not be self-executing, that is, when one of the sovereign nations promises to do an act, see Leslie Henry, ‘When is A Treaty Self-Executing’, 27 Mich. L. Rev. (1929) 7, 777-778.
Volume 11 Number 3 April 2014 325 Jurnal Hukum Internasional perspective of validity instead of applicability of a treaty, the question turns into a transformation-dualist and adoption-monist controversy. In this regard, what occurs in the American debate concerning this issue is, as Henkin17 claims, a moving jurisprudence directly from monism to dualism, whereby it abandons a principal element of the constitutional doctrine that treaties are law of the land, by declaring them to be non- self-executing. The United States’s adherence to human rights conventions has at- tached to each of its ratifications a ‘package’ of reservations, -under standings and declarations (RUDs), which are amongst others guided by principle that every international human rights agreement should be ‘non-self-executing’.18 In ratifying the International Covenant on Civil and Political Rights of 1966, for example, the United States declared: The provisions of Articles 1 through 27 are not self-executing. This declaration did not limit the international obligations of the United States under the Covenant. Rather, it means that, as a matter “of domestic law, the Covenant does not, by itself, create private rights directly enforceable in U.S. courts.”19 It appears that such a declaration constitutes an application of the transformation-dualist approach instead of determining a non-self ex- ecuting treaty and is, as Henkin’s allegation above, against the monist construction of Article VI of the United States constitution. The dec- laration has regarded all substantive norms non-self-executing indis- criminately without due regard for the merits of the given norms.20 Wildhaber21 also identifies confusion amongst scholars as too many
17 Louis Henkin, ‘Implementation and Compliance: Is Dualism Metastasizing?’ 91 Am. Soc’y Int’l L. Proc. (1997), 517, 517. 18 Henkin, ibid, 341. 19 Consideration of Reports Submitted by States Parties under Article 40 of The Cov- enant, Initial reports of States parties due in 1993, Addendum, CCPR/C/81/Add.4, para. 8. 20 Buergenthal claims the United States is applying an indiscriminate fashion in de- termining treaties as non-self-executing in order to embrace different grounds for refusing to enforce a treaty as domestic law and is the only monist state where the determination may depend on considerations other than the language of the treaties, see Buergenthal (note 1), 368-383. 21 Luzius Wildhaber, Treaty-Making Power and Constitution: An International and
326 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties use the term non-self-executing treaties without adequately defining it. The concept is used to describe two different situations. First, treaties are self-executing if the entry into force of the treaties under internation- al law suffices to render treaties municipally binding and obligatory. In this regard, one might be tempted to assume that for states subscribing monist adoption treaties are self-executing, while for those subscrib- ing dualist-transformation treaties always non-self-executing.22 Second, a treaty is self-executing if municipal courts can apply it immediate- ly without further implementing acts to individuals. As the American common law has hardly departed from the monist-dualist theoretical debate and preferred the actual behaviour of municipal courts, the term of self-executing and non-self-executing treaties will refer to both situa- tions. Through the approach one tends to seek directly which norms are judicially enforceable or not in the municipal courts, thus covering both questions in the same vein concerning direct enforceability and mu- nicipal validity. Practically, it seems difficult to assert that valid norms cannot be enforceable as the courts only enforce norms that have been part of municipal law. The problem becomes exacerbated because the American Constitu- tion theoretically subscribes to the adoption-monist approach for trea- ties, by which: all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby23. Unlike Ameri- can law, British law finds the issue of self-executing and non-self-exe- cuting treaties less controversial because the transformation doctrine is perfectly applied. Under this doctrine, legislations are in place for the
Comparative Study (1971), 226-227. 22 It is always argued that treaties have not been incorporated in the municipal law of the United States because they are not self-executing, see Manley O. Hudson, ‘Char- ter Provisions on Human Rights in American Law’, 44 AJIL (1950) 3, 545. It is also thought that there are treaties which are not immediately part of the law of the land but require the aid of a statute, see Stefan A. Riesenfeld, ‘The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions’, 25 Cal. L. Rev. (1936-1937) 643, 649-650. European scholars, which commonly use the term ‘direct effect’ and ‘indirect effect’, identify indirect effect as applied in the many states that require transformation into domestic law, see André Nollkaemper, National Courts and the International Rule of Law (2011), 118. 23 Article VI, para. 2 Constitution of the United States.
Volume 11 Number 3 April 2014 327 Jurnal Hukum Internasional courts to enforce the transformed treaties’ norms. In the transformation process parliament will cautiously ensure that the norms are phrased and set to be self-executing and enforceable in the courts. But since the inception of European Community law, the question corresponding to non-self-executing treaties i.e. whether the provisions are directly ap- plicable becomes very important in British law. To avoid confusion, many scholars are therefore strongly of the view that a clear distinction between the two is necessary in order to acquire a clear understanding about what self-executing and non-self- executing treaties are meant to be. Some scholars24 criticize the tenden- cy to confuse two issues and prefer to have them differentiated. Firstly, formal validity (status) of treaties under municipal law (domestic incor- poration issues), and secondly, the content of a treaty: whether it needs intervention legislation or relies on a domestic operator or is directly applicable. The first issue is whether and how treaties can be considered to be binding under municipal law that results from the application of the adoption-transformation doctrines. The second issue is about con- tent and intent, or object and purpose that could only arise when under the first issue the treaty has been determined valid in municipal law.25 In this regard the question on the non-self-executing and self-executing nature of treaties is relevant only when it has been preliminarily deter- mined that the treaty has been adopted or transformed in municipal law. In line with this argument, Vazquez26 criticizes the tendency to read the Medellin case as holding that a treaty is non-self-executing unless its text clearly specifies that it has the force of domestic law.
24 J.A. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law, 9 CML Rev. (1972), 428; Iwasawa (note 140), 635- 649; Benedetto Conforti, International Law and the Role of Domestic Legal System (1993), 25; H. F. van Panhuys, ‘Relations and Interactions between International and National Scenes of Law’, 112 RdC (1964-II), 79; Swan Sik Ko, ‘International Law in the Municipal Legal Order of Asian States: Virgin Land’, in Ronald St. J. MacDonald (ed.), Essays in Honour of Wang Tieya (1994), 739; Buergenthal (note 1), 318-319; Nollkaemper (note 22), 130-134; Carlos Manuel Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties’, 122 Harv. L. Rev. (2008), 652-654. 25 V.T. Thamilmaran, ‘International Law and National Law: Element of Automatic Incorporation’, 11 Sri Lanka J. of Int’l L (1999), 237-238. 26 Manuel Vázquez (note 24), 652.
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The question of direct effect has also been addressed vaguely by the judgment of the ICJ in the case of Avena of 2009 on the Request for In- terpretation of the Judgment of 31 March 200427, especially on the direct effect status of obligations imposed upon the US as set out in paragraph 153 (9)28 of the judgment of 2004. In addressing the question, the ICJ ap- peared to be hesitant to make any clear legal position on the question of direct effect. In paragraph 44 of the 2009 judgment, it stated: The Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 153 (9). The obligation laid down in that paragraph is indeed an obligation of the result which clearly must be performed uncondi- tionally; non-performance of it constitutes internationally wrongful conduct. However, the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed nec- essary under domestic constitutional law. Nor moreover does the Avena Judgment prevent direct enforceability of the obligation in question, if such an effect is permitted by domestic law. Albeit encountering the question of direct effect, the Court seems to keep silent on various questions underlying the concept. It does neither clarify whether the judgment could decide the direct effect status of an international obligation, nor does it pronounce a convincing view that domestic law could determine such direct effect quality. The paragraph suggests two conflicting clues. First, that the ICJ through its judgment may lay down that a state is required to give direct effect to an interna- tional obligation, for which the Court did not do so in the Avena Case. Second, the means of implementation of a judgment may have direct
27 Avena and Other Mexican Nationals (Mexico v. United States of America), ICJ Reports (2004), 12 (Judgment of 31 March 2004); see also Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), ICJ Reports (2009), 3 (Judgment of 19 January 2009). 28 Paragraph 153 (9) states: ‘(f)inds that the appropriate reparation in this case con- sists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (41), (51), (6) and (75) above, by taking account both of the violation of the rights set forth in Article 36 of the Con- vention and of paragraphs 138 to 141 of this Judgment’.
Volume 11 Number 3 April 2014 329 Jurnal Hukum Internasional effect status, as long as it is permitted by domestic law. It has been ar- guably presumed that the statement demonstrates a tendency to merge the concept of non-self-executing/direct effect with that of the issue of transformation mode.29 It would, however, be difficult to derive any clear guidance from the paragraph because the Court has at no time clearly defined what it means by the term ‘direct effect’ when linked to the related concept of modes of incorporation of obligation into domestic law.30 Discussions among US scholars clearly ascribed the term to the problem of non-self- executing obligation that has long been debated. The interchangeable use of the terms has created confusion among scholars. The judgment added to this confusion because in the same paragraph another term is introduced i.e. ‘direct enforceability’ without clarifying whether the term refers to the same concept as ascribed by the term ‘direct effect’. On this point, a careful reading of the judgment on the Avena case quoted above will reveal that it is not really questioning the validity of the ICJ original judgment of 2004 within the US domestic law, but merely emphasises that the means of implementation of the ICJ i.e. paragraph 153 (9) shall be left entirely to the US. Unlike the European Court of Justice (ECJ) Van Gend en Loos case, the ICJ appeared to es- cape the question of direct effect of paragraph 153 (9) and clearly stated that it was not decided by the original judgment. For that reason the ICJ thus declined to give an interpretation. In paragraph 44 the ICJ stated that: In short, the question is not decided in the Court’s original Judg- ment and thus cannot be submitted to it for interpretation under Article 60 of the Statute. The hesitancy of the ICJ to provide legal enlightenment on the question of direct effect was regretted by Judge Sepulveda Amor in his dissenting opinion through the argument that there existed different interpretations of the parties as to the domestic effects of an interna- tional obligation for which the ICJ should have had jurisdiction. The Court could have made an important contribution to the development
29 Nollkaemper (note 22), 119. 30 Winter prefers to reserve the term ‘direct applicability’ for the method of incorpora- tion into the municipal law, and the terms ‘direct effect’ to describe when the provi- sions is judicially enforceable, see A. Winter (note 24), 425-426.
330 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties of international law by settling the issues raised by the conflicting inter- pretation. 31 The judgment thus keeps the controversy surrounding the non-self-executing question undetermined. The direct enforceable and non-self-executing rules are common in every case of law application and may occur in municipal rules of dual- ist and monist states. Most scholars submit that if the term ‘non-self- executing treaties’ is meant to be not capable of being executed in the absence of additional implementing measures, it may also be equally applicable to other legislations or constitutions.32 Many provisions of national legal orders are not capable by themselves to be executed with- out some additional legislation. A non-self-executing provision is not a question that exclusively relates to treaties but a common problem associated with the norms. Likewise, treaties might presumably be self- executing in dualist states if an implementing legislation has been pro- vided or adequate before ratification.33 Evan34 argued that in Foster vs. Neilson the courts held that legis- lative implementation is necessary for the confirmation of land titles which were not perfected prior to the cession of territory to the United States and for the grant of patents to public lands of the United States. Whereas public lands might be sold by the President under the terms of a treaty, the money could not be disposed of without prior approval of Congress. So as a matter of content, the rule, albeit valid under munici- pal law, could not by its own term become applicable under municipal law and therefore requires legislation to make it enforceable. In this perspective, the legislation was intended to make the rule enforceable before the court, not to transform it into domestic law.
31 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) (note 27) Dissenting Opinion of Judge Sepulda Amor, para. 37-43. 32 A provision of the United States Constitution which empowers the Congress of the United States ‘to promote the Progress of Science and useful Arts, by securing for lim- ited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’ is too general and requires a patent and a copy right legislations for them to be enforceable in a Court, see Buergenthal (note 1), 369. 33 Lawrence Preuss, ‘On Amending The Treaty-Making Power: A Comparative Study of The Problem of Self-Executing Treaties’, 51 Mich. L. Rev. (1952-1953), 1124. 34 Alona E. Evans, ‘Some Aspects of the Problem of Self-Executing Treaties’, 45 Am. Soc’y Int’l L. Proc. (1951) 66, 73.
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IV. Criteria for Non-Self-Executing Treaties The confusion arising from various views regarding the term has prompted a clearer definition for self-executing treaties particularly when explaining the nature of legislation involved. It strongly suggests that the nature of legislation as required for the purpose of making pro- visions of treaties self-executing is an ‘implementing’ one instead of an ‘adopting’ or a ‘transforming’ one. In an attempt to provide a clearer working definition Evans35 defines self-executing treaties as, generally speaking, those which can be executed by force of their own terms; those which require no implementation by Congress; and those which are addressed to the courts. Kelsen36 envisages clearly this very notion by stating that a norm of international law which is applicable by the or- gans of the states without further implementation by national law may be called a self-executing norm. The legislation that might be required for a non-self-executing treaty is aimed at implementing the already valid rules rather than to give validity to the rules. Such implementing legislation, in this respect, shall be distinguished from transformation, which is aimed at giving validity effect to that norm. O’Connell37 put emphasis to the implementation of legislation as distinguishing self-executing from non-self-executing. He described the distinction as between two kinds of treaties: those intended to fall within the purview of municipal courts, and those which leave it to implementing municipal legislation to carry their purpose into effect. Panhuys38 also advocates the same line of argument by saying that the expression ‘non-self-executing’ means that the rule is phrased so that further enactments are required for its implementation. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948, has been commonly cited as describing a need of fur- ther implementing legislation, as Article V prescribes that:
35 Evans (note 34), 74. 36 Hans Kelsen, Principles of International Law (2003), 401-447; Edwin Bochard, ‘The Relation between International Law and Municipal Law’, 27 VA. L. Rev. (1940) 2, 194-196. He further states that only norms of international law providing for ad- ministrative or judicial acts need transformation, this only if the administrative or judicial organs are bound by constitution to apply solely national law. 37 Daniel P. O’Connell, International Law, vol. 1 (1970), 56. 38 van Panhuys (note 24), 76-77.
332 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties
The parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provi- sions of the present Convention and, in particular, to provide effec- tive penalties for persons guilty of genocide or of any of the other acts enumerated in Article III. Article V would seem to suggest that the treaty is not self-executing in the sense that upon its ratification, prosecution could not be instituted in the municipal courts before the relevant criminal code would have to be amended. Nonetheless, a survey of literatures suggests that the meaning of self-executing and non-self-executing treaties recently already tends to confine to municipal applicability instead of municipal validity of trea- ties. Controversies surrounding the notions remain unsettled. Scholars have not yet agreed on determining the criteria for which treaties are and which are not self-executing, and to what extent international law or national law could play a decisive role for its determination. In dealing with criteria, scholars have made extensive attempts to generalize treaties that require implementing legislation. Leary39 identi- fied three relevant criteria used by American courts and scholars to de- termine when a provision of a treaty required implementing legislation: (1) intention of the parties, (2) the precision and detail of language em- ployed, and (3) whether the subject matter relates to powers belonging to the legislative or executive branches rather than the judicial branch. However, Leary acknowledges that the criteria hardly applied with suf- ficient consistency to make an accurate prediction likely. Scharchter40 finds it difficult to draw clear criteria and identifies that there are only two clear situations where a treaty provision requires legislative ac- tion before it can become effective: (1) where the treaty has an explicit provision to this effect and (2) where the power to deal with the subject of the treaty is vested solely in the legislature, as for example a provi- sion calling for criminal penalties or requiring a direct appropriation
39 Virginia A. Leary, International Labour Conventions and National Law: The Ef- fectiveness of The Automatic Incorporation of Treaties in National Legal Systems (1982), 57-63. 40 Oscar Schachter, ‘The Charter and The Constitution: The Human Rights Provisions in American Law’, 4 Vand. L. Rev. (1950-1951), 645-646.
Volume 11 Number 3 April 2014 333 Jurnal Hukum Internasional of money. Outside of these two categories, it does not seem possible to generalize regarding the kind of treaties which require legislative implementation: each case must be examined on its own merits in order to determine whether the treaty provision may become presently effec- tive without awaiting further legislation. Vazquez41 draws four doctrines to explain why a treaty might be judicially unenforceable in the municipal courts: 1) The parties (or perhaps the U.S. treaty makers unilaterally) made it judicially unenforceable. This is primarily a matter of intent. 2) The obligation it imposes is of a type that, under our system of separated powers, cannot be enforced directly by the courts. This branch of the doctrine calls for a judgment concerning the allocation of treaty-enforcement power as between the courts and the legislature. 3) The treaty makers lack the constitutional power to accomplish by treaty what they purported to accomplish. This branch of the doctrine calls for a judgment about the allocation of legislative power between the treaty makers and the lawmakers. 4) It does not establish a private right of action and there is no other legal basis for the remedy being sought by the party relying on the treaty. Unlike the first three categories of non-self-executing treaties, a treaty that is non-self-executing in the fourth sense will be judicially un- enforceable only in certain contexts. These four issues are sufficiently distinct and require sufficiently differing analyses, so that they should be thought of as four distinct doctrines. Instead of drawing criteria, some prefer to enlist subject matters of treaties that are inevitably non-self-executing and for which imple- menting legislation is required. Kelsen42 acknowledges that the norm of international law may require implementation by norms of national law such as declaring war, determining the competent organs, extradition, determining administrative and judicial organs, determining punish- ment and penalty. He further indicates that all the norms of international law imposing obligations or conferring rights upon states commonly re-
41 Carlos Manuel Vázquez, ‘The Four Doctrines of Self-Executing Treaties’, 89 AJIL (1995) 4, 695-723. 42 Kelsen (note 36), 193-194.
334 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties quire implementation by national law. However, if the national law al- ready contains the norm that makes the application of international law possible, no further implementation is necessary. Likewise, it is also commonly considered as non-self-executing if treaties obligate a state to pay money to a foreign state or to foreign parties, create criminal law, or provisions are too vague or open-ended such as programmatic char- acter. Wright43 has attempted a classification, and distinguishes three classes of non-self-executing treaties; (1) treaty provisions dealing with finances; (2) treaty provisions which require for their performance de- tailed supplementary legislation or specific acts which the Constitution provides shall be performed by Congress (e.g., incorporation of terri- tory, organization of offices and courts, and declaration of war); and (3) treaty provisions which are by nature self-executing, but because of historical tradition and constitutional interpretation require legislation to be executed (e.g., treaties defining crimes). A survey of American court cases by Buergenthal44 has suggested that certain subjects matters will prompt treaties to be non-self-execut- ing such as if its enforcement without specific implementing legislation would make the treaty unconstitutional, what are deemed to be exclusive legislative powers, and patent law. On the other hand, treaties of friend- ship, commerce and navigation, granting most favoured-nation status, commercial matters, extradition, trademark, etc., are self-executing. Scholars are also divided when dealing with the question as to whether such determination is governed by international law or mu- nicipal law. Winter45 asserts that the question of direct enforceability of treaty provisions is primarily, if not exclusively, a problem of interna- tional law. Panhuys46 also argues that the determination of self-execut- ing or non-self-executing natures shall be sought mainly by reference to international law and disagreed with the Dutch Supreme Court in its ruling that the answer must exclusively be sought in international
43 Quincy Wright, The Control of American Foreign Relations (1922), 354-355. 44 Buergenthal (note 1), 381-382. 45 J.A. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law, 9 CML Rev. (1972), 428. 46 van Panhuys (note 24), 79.
Volume 11 Number 3 April 2014 335 Jurnal Hukum Internasional law.47 A contrasting view is advocated by Buergenthal,48 arguing that it is domestic law that determines whether the treaty creates rights which domestic courts are empowered to enforce in a state. The similar view is shared by van Dijk49 who holds that, as a rule, it is for the domes- tic court to decide whether a treaty provision is self-executing or not. However van Dijk noted, as an exception, that it may well be that the treaty itself contains prescriptions to that effect thus such as the then Article 288 of the Treaty on the Functioning of the European Union (TFEU). Article 288 provides that a regulation made by the Council or Commission ‘shall be binding in its entirety and directly applicable in all Member States’. Consequently, if the status of self-executing or non-self-executing treaties is determined by domestic law, it would be impossible to provide a useful definition to the terms because such determination will vary ac- cording to the given state. A non-self-executing provision in one state might be self-executing in another state. The full reliance exclusively on municipal law in making such a determination in an unrestrictive manner and without objective criteria will lead to a situation where the merits of the treaty - the intention, the precision and detail of language employed - are not necessarily determinative. It may even induce states to decide all treaties are non-self-executing status indiscriminately in order to refuse the applicability of a treaty’s provision on the basis of non-juridical ones, such as national interest. If such a situation occurs it is no longer a matter of self-executing or non-self-executing treaties in the sense of direct enforceability but becomes a question of domestic validity, by which the transformation-dualist doctrine is actually com- ing into play. In order to avoid political manoeuvring where a state does not wish to apply the treaties’ norms simply because they are undesirable, contrary to national interest, introducing progressive values, or are viewed suspi-
47 In 1962, the Hoge Raad (Dutch Supreme Court) ruled that the question whether a treaty provision is directly applicable or not is a question of treaty-law rather than a question of Netherlands law, see Judgment of May 18, 1962, Bosch GmbH N.V. v. de Geus en Uitdenbogerd, HR., 1965 N.J. No. 115. 48 Buergenthal (note 1), 317. 49 Pieter van Dijk and Bahiyyih G. Tahzib, ‘Parliamentary Participation in the Treaty- Making Process of the Netherlands’, 67 Chi.-Kent L. Rev. (1991), 420.
336 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties ciously by the internal judge purely by reason of their origin, Conforti50 takes a cautious approach towards norms that owe their non-self-execut- ing nature in order to impose more restrictions on the criteria for treaties to be non-self-executing. They are confined only to rules of two kinds. First, those that do not create any obligations for the state but merely al- low for discretionary power, for example, states may draw straight base- lines under the United Nations Convention on the Law of the Sea. Sec- ond, those which, even as they create obligations, cannot be implemented because the necessary organs or mechanisms have not been developed. For example, Article 14 of the International Covenant on Civil and Politi- cal Rights of 1966 concerning the right to appeal a criminal conviction. It has been found inapplicable by Italian and Dutch courts where a higher court has not been created. He refuses to accept any other criteria as they may be arbitrary and carry political consideration. A set of criteria has also been developed by the Van Gend en Loos case, as quoted above, to determine a direct applicable treaty. It has cur- rently been formulated as containing three conditions: (1) the provision must be clear and precise, (2) it must be unconditional, (3) its operation must not be dependent on further action being taken by Community or national authorities. However, it has been argued that this set of crite- ria appears to be applied more strictly when dealing with international agreements than when determining the direct applicability of Commu- nity law. For the latter, there appears to be a presumption in favour of direct applicability.51 However, Van Gend en Loos case and the subsequent case Costa v. ENEL52 established a new principle where the Court found that the European Economic Community (EEC) - then European Community or EC - Treaty differed from ordinary international treaties and made quite clear that Community law creates rights directly enforceable by individuals in the national courts of the member states.53 Thereafter, the
50 Benedetto Conforti, International Law and the Role of Domestic Legal System (1993), 27. 51 Pierre Pescatore, ‘The Doctrine of ‘Direct Effect’: An Infant Disease of Community Law’, 8 Europ. L. Rev. (1983), 177. 52 Case 6/64, Flaminio Costa v E.N.E.L., (1964) ECR 585, E. Comm. Ct. J. Rep. 585 (Preliminary Ruling). 53 Buergenthal (note 1), 330.
Volume 11 Number 3 April 2014 337 Jurnal Hukum Internasional national courts of the European Union pursued a different approach when encountered with identical provisions i.e. between Article III of the GATT Agreement and Article 95 (1) of EEC Treaty. As revealed in the past, German courts refused to recognize the direct application of the GATT Agreement by arguing that while the GATT Agreement was an international treaty in the classical sense regulating economic rela- tions amongst states, the EEC Treaty created its institution structure on which member states conferred, within a limited area, powers which the institution may exercise independently.54 The creation of some of its articles of direct rights and duties for the nationals of the member states was an effect distinct from the concept of self-executing provi- sions in ordinary international treaty.55 The member states of the Com- munity have accepted the theory of the Community Court that by join- ing the European Union they transferred to it certain of their sovereign rights and legislative powers in order to remove obstacles to the direct applicability of Community law.56 The case may perfectly explain that the same wordings in the different instruments may be interpreted dif- ferently under different legal orders, which is eventually beyond the content criteria. The scholarly endeavours to establish objective criteria to draw a line between treaties that are and are not self-executing have not yet provided a satisfactory result. The difficulty is not only that it will de- pend on the municipal law determination, which will vary from one state to another, but also on the fact that the decision should be pursued on a case-by-case basis before the courts. In the US the problem has become the subject of contentious debates between nationalist and tran- snationalist approaches.57 The involvement of political and self-interest
54 Gerhard Bebr, ‘Directly Applicable Provisions of Community Law: Development of Community Concept’, 19 Int’l & C.L.Q. (1970) 2, 258-259. 55 Stefan A. Riesenfeld, ‘The Doctrine of Self-Executing Treaties and GATT: A Nota- ble German Judgment’, 65 AJIL (1971) 3, 549. 56 Buergenthal (note 1), 329. 57 The scholarly discussion on treaty enforcement in the United States has been high- lighted by two mutually negated approaches between nationalists and transnationalists. Nationalists hold that treaties lack domestic legal force in the absence of implement- ing legislation, courts should interpret treaties in accordance with executive branch policy preference, and that treaties do not create individually enforceable rights, and that the judiciary is not responsible for providing remedies for violation of a treaty. In
338 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties considerations to such a determination have added to the existing com- plex problem pertaining to the concept, which would affect the good faith principle enshrined in the law of treaties. The different approaches pursued by US and German courts in cases58 involving the interpreta- tion of Article 36, Vienna Convention on Consular Relations of 1963 have shown how the same provisions have been interpreted contrast- ingly by the courts of the two states, and have therefore resulted in con- trasting outcomes. Consequently, the enjoyment of an individual right conferred by the same treaty varies from one state to another.
V. Conclusion Following the arguments put forward above, it suffices to conclude that the survey of literature suggests that the discussion regarding the notion non-self-executing treaties has increasingly been confined to the problem of municipal enforceability and therefore is distinguished from the question on municipal validity of treaties. In dealing with the very notion, it must be presumed that the given treaties have already been afforded municipal status either through the application of adoption or transformation modes. The question at hand is whether or not a specific treaty provision is capable on its own terms to be applied in municipal law. It will be determined through relevant circumstances by means of international law and municipal law with the view of determining whether or not implementing legislation is still required. The determi- contrast, transnationalists hold that treaties have the status of law in the United States, that courts should interpret treaties in accordance with international law, that treaties protect individual rights, and that the judiciary is responsible for providing remedies to individuals whose treaty rights are violated, see David Sloss, ‘When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Ham- dan and Sanchez-Llamas’, 45 Colum. J. Transnat’l. L. (2006) 1, 29-37. 58 Having contrasted Sanchez-Llamas v. Oregon and the German Bundesverfassungs- gericht in the consolidated cases decided on 19 September 2006 (2 BvR 2115/01), it has been commonly concluded by scholars that the two Courts steered very different courses, see Carsten Hoppe, ‘Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpre- tation of Consular Rights’, 18 EJIL (2007) 2; Jana Gogolin, ‘Avena and Sanchez- Llamas Come to Germany – The German Constitutional Court Upholds Rights under the Vienna Convention on Consular Relations’, 8 GLJ (2007) 3.
Volume 11 Number 3 April 2014 339 Jurnal Hukum Internasional nation will involve international law focusing on the content or nature of the treaty obligation, stipulation, and the intent of the state parties; and municipal law dealing with the question whether and under what circumstances such enforcement requires devoted legislative action to accomplish this aim. Applying the non-self-executing rule indiscriminately, arbitrarily and without fully taking into account the terms or nature of the given provisions will only dilute and complicate the already-existing dis- tinction of methods of granting municipal validity of treaties (monist adoption and dualist transformation). It will entail a conviction that the question of non-self-execution is nothing but the question as envisaged by the dualist transformation theory and, therefore, will constitute an unnecessary repetition to the already long-lasting discussion about the same issue. The question of self-executing treaties becomes inevitable when treaties overlap with municipal law i.e. when both regulates the same subjects such as, in the case of American law, human rights. What was traditionally governed by municipal law is now also governed by inter- national law. As treaty law nowadays enters into an area that was tradi- tionally under the exclusive domain of municipal law, such as human rights norms, not all treaty norms could by their own terms be appli- cable in municipal law without the aid of implementing legislation. Hu- man rights treaties commonly create rights of individuals against their own state, which traditionally belong exclusively under municipal law. Such rights will inevitably involve an establishment of municipal legal framework and institutions, which would be out of reach of treaties. In this regard, implementing legislations are necessary to fill the area beyond the scope of the treaties and within this perspective, non-self- executing provisions of a treaty should be meant as incomplete provi- sions and therefore incapable for domestic implementation. The question of municipal validity shall therefore be distinguished from the problem of non-self-executing treaties. The former is a matter of legal policy pursued by a state in dealing with the question of the relationship of treaties and municipal law, which shall be, as a matter of option, determined by its municipal law. The latter is not a matter of option but a problem of legal determination, which, albeit partly deter-
340 Volume 11 Number 3 April 2014 Self-executing and non self executing treaties mined by discretionary measure based on municipal law, should also rely on the terms of the treaty’s provisions. It is a juridical question and the answer should carry legal consideration which justifies that a treaty’s norm is non-self-executing. The non-self-executing nature is also invoked to prevent the intru- sion of international law into municipal law in the upsurge of constitu- tional resistance towards international law in the American legal sys- tem. Such intrusions have already been considered to adversely affect the legislative power, which traditionally enjoyed privileges in creating rights and obligations of individuals. While it is the right of states to enforce policy to prevent the intrusion of norms of treaties into munici- pal law, such policy should not abuse the very nature of the question of non-self-executing treaties, which is a purely juridical one. It is worth observing that by declaring a provision of a treaty non-self-executing, a state is not denying the rights and obligations thereof but merely delay- ing their enforcement pending the issuance of implementing legal mea- sures. In this regard, when a state under its municipal law determines a treaty is non-self-executing, it shall automatically follow that such state is under international obligation to take legal measures to implement the provision municipally as intended by the parties. Failure to do so will constitute a violation of its international obligations. What is now required is merely developing a set of objective criteria to determine whether a treaty is non-self-executing in a restrictive man- ner, on the basis of the presumption that once a treaty becomes the law of the land it will be self-executing unless the nature of its provisions dictates otherwise. Different results of the same provision of a treaty arising from the application of different non-self-executing rules by the parties to a treaty will constitute an unfair situation regarding perfor- mances of state parties in carrying out their international obligations. A survey of municipal practices suggests that implementing legisla- tions are required when: 1) Treaties provide norms but according to the respective constitutional law such norms should be given effect only by municipal legislation, such as creating a criminal offence rule. 2) Treaties establish permissive or discretionary rules and shall be determined by the respective states, such as to declare that they are
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archipelagic states. 3) Treaties require states to make a prescribed municipal act such as determining base lines for the measuring of maritime zones.
REFERENCES
Books and Journals
Gerhard Bebr, ‘Directly Applicable Provisions of Community Law: Development of Community Concept’, 19 Int’l & C.L.Q. (1970) 2, 258-259. Albert Bleckmann, ‘Self-Executing Treaty Provisions’, in Rudolf Bernhardt, Encyclo- pedia of Public International Law, vol. 4 (2000), 374. Edwin Bochard, ‘The Relation between International Law and Municipal Law’, 27 VA. L. Rev. (1940) 2, 194-196 Thomas Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National and International Law’, RdC (1992-IV), 368. Benedetto Conforti, International Law and the Role of Domestic Legal System (1993), 27 Constitution of the United States Samuel B. Crandall, Treaties, Their Making and Enforcement (1916), 153 ASIL, ABA/ASIL Joint Task Force on Treaties in US Law, Report (16 March 2009), 11-12 Pieter van Dijk and Bahiyyih G. Tahzib, ‘Parliamentary Participation in the Treaty- Making Process of the Netherlands’, 67 Chi.-Kent L. Rev. (1991), 420. Jana Gogolin, ‘Avena and Sanchez-Llamas Come to Germany – The German Con- stitutional Court Upholds Rights under the Vienna Convention on Consular Rela- tions’, 8 GLJ (2007) 3 Louis Henkin, ‘Implementation and Compliance: Is Dualism Metastasizing?’ 91 Am. Soc’y Int’l L. Proc. (1997), 517 Louis Henkin, ‘U.S. Ratification of Human Rights Conventions: The Ghost of Sena- tor Bricker’, 89 AJIL (1995) 2, 346-347 Leslie Henry, ‘When is A Treaty Self-Executing’, 27 Mich. L. Rev. (1929) 7, 777-778 Manley O. Hudson, ‘Charter Provisions on Human Rights in American Law’, 44 AJIL (1950) 3, 545 Carsten Hoppe, ‘Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights’, 18 EJIL (2007) 2 Yuji Iwasawa, ‘The Doctrine of Self-Executing Treaties in the US, A Critical Analy- sis’, 26 Va. J. Int’l. L. (1985-1986), 627 Hans Kelsen, Principles of International Law (2003), 401-447 Swan Sik Ko, ‘International Law in the Municipal Legal Order of Asian States: Vir- gin Land’, in Ronald St. J. MacDonald (ed.), Essays in Honour of Wang Tieya (1994), 739 Virginia A. Leary, International Labour Conventions and National Law: The Effectiveness of The Automatic Incorporation of Treaties in National Legal Systems (1982), 57-63
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André Nollkaemper, National Courts and the International Rule of Law (2011), 118 Daniel P. O’Connell, International Law, vol. 1 (1970), 56 H. F. van Panhuys, ‘Relations and Interactions between International and National Scenes of Law’, 112 RdC (1964-II), 79 Pierre Pescatore, ‘The Doctrine of ‘Direct Effect’: An Infant Disease of Community Law’, 8 Europ. L. Rev. (1983), 177 Lawrence Preuss, ‘The Execution of Treaty Obligations Through Internal Law- System of The United States and of Some Other Countries’, 45 Am. Soc’y Int’l L. Proc. (1951), 102 Stefan A. Riesenfeld, ‘The Doctrine of Self-Executing Treaties and GATT: A Notable German Judgment’, 65 AJIL (1971) 3, 549 Stefan A. Riesenfeld, ‘The Power of Congress and the President in International Re- lations: Three Recent Supreme Court Decisions’, 25 Cal. L. Rev. (1936-1937) 643, 649-650 Oscar Schachter, ‘The Charter and The Constitution: The Human Rights Provisions in American Law’, 4 Vand. L. Rev. (1950-1951), 645-646 David Sloss, ‘When Do Treaties Create Individually Enforceable Rights? The Su- preme Court Ducks the Issue in Hamdan and Sanchez-Llamas’, 45 Colum. J. Transnat’l. L. (2006) 1, 29-37 V.T. Thamilmaran, ‘International Law and National Law: Element of Automatic In- corporation’, 11 Sri Lanka J. of Int’l L (1999), 237-238 Carlos Manuel Vázquez, ‘The Four Doctrines of Self-Executing Treaties’, 89 AJIL (1995) 4, 695-723 Carlos Manuel Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties’, 122 Harv. L. Rev. (2008), 652-654 Stephen Weatherill, Cases and Materials on EU Law (2007), 96 Luzius Wildhaber, Treaty-Making Power and Constitution: An International and Comparative Study (1971), 226-227 J.A. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Con- cepts in Community Law, 9 CML Rev. (1972) Tunkin and Wolfrum (eds), Walter Rudolf, ‘Incorporation of International Law into Municipal Law’, in Grigory Tunkin and Rüdiger Wolfrum, International Law and Municipal Law (1988), 40-46 Quincy Wright, The Control of American Foreign Relations (1922), 354-355. Quincy Wrights, ‘National Courts and Human Rights: The Fuji Case’, 45 AJIL (1951), 64-65
Case Laws
Avena and Other Mexican Nationals (Mexico v. United States of America), ICJ Re- ports (2004), 12 (Judgment of 31 March 2004); Bosch GmbH N.V. v. de Geus en Uitdenbogerd, HR., 1965 N.J. No. 115 Foster v. Neilson, 27 U.S. 253 (1829) Flaminio Costa v E.N.E.L., (1964) ECR 585, E. Comm. Ct. J. Rep. 585 (Preliminary
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Ruling) Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 PCIJ Series B, No. 15 Medellin v. Texas, 552 U.S. 491 (2008) Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), ICJ Reports (2009), 3 (Judgment of 19 January 2009) Sanchez-Llamas v. Oregon and the German Bundesverfassungsgericht in the consoli- dated cases decided on 19 September 2006 (2 BvR 2115/01) Sei Fujii v. State, 217 P.2d 481 (1950) Van Gend en Loos v. Netherlands Inland Rev- enue Administration, (1963) ECR 1
344 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production
REGULATING UNCONVENTIONAL OIL AND GAS PRODUCTION: TOWARDS AN INTERNATIONAL SUSTAINABILITY FRAMEWORK
Damilola S. Olawuyi *
Abstract
Many of the emerging literatures on unconventional oil and gas production have taken the form of arguing for and against its positive and negative impacts. Studies have taken the form of exploring how it could result in increased energy production, energy security, financial returns and profits to local entities, increased investments in priority sectors, and generation of local employment opportunities. On the other side, there have been explorations of the costs of fracking to the environment, human health, long term sustainability and contamination of drill sites. Less attention have been paid to exploring the possibilities of an international framework through which we could achieve a win- win scenario, i.e maximizing the economic potentials of unconventional oil and gas by reducing the environmental side effects. This paper discusses an international framework built on the theory of sustainable development, through which the environmental concerns associated with unconventional oil and gas production can be addressed.
Keywords: sustainable development; unconventional oil; shale gas; hydraulic fracking
I. INTRODUCTION The aim of this paper is to explore policy and regulatory issues that must be addressed to ensure the sustainable production of oil from unconventional sources. By unconventional sources we mean oil and natural gas that are found in source rocks, such as shales, oil sands, coal bed methane (CBM), biomass based liquid supplies, rather than in res- ervoir accumulation. According to the United States Energy Informa- tion Administration, shales are fine-grained sedimentary rocks that usu- ally contain natural gas and petroleum, which are embedded between layers. After drilling into the shale, water is pumped, and the ensuing pressure forces the hydrocarbon particles to be released and collected for processing.1
* LL.M (Calgary), LL.M (Harvard), DPhil. (Oxford), Director for Research, Train- ing and International Development, Institute for Oil, Gas, Energy, Environment and Sustainable Development (OGEES Institute), Afe Babalola University, Ado Ekiti, Ni- geria; email: dolawuyi@ ogesinstitute.edu.ng
Volume 11 Number 3 April 2014 345 Jurnal Hukum Internasional
More than ever before, the economic potentials and promise of un- conventional oil and gas production and its likely impacts on global energy supply and demand have been subjects of increased attention. According to the International Energy Agency (IEA), unconventional gas will account for nearly half of the increase in global gas production to 2035, with most of the increase coming from the United States and Australia.2 Unconventional gas production can result in massive expan- sions of energy production, increased economic activity and job oppor- tunities for local communities. It could also diversify global trends in energy supply and demand, putting pressure on conventional gas sup- pliers and altering demand and supply trends and traditional pricing mechanisms.3 Governments and multinational oil companies are therefore increas- ingly investing in unconventional oil sources due to the increased scar- city of conventional oil and the higher cost of conventional oil pro- duction. Most recently, Shell signed a $10billion shale gas deal with Ukraine – the biggest contract yet in Europe. Similarly, China, India and Indonesia are considered as potential Asian giants in shale gas re- sources. According to the Indonesian Ministry of Energy and Mineral Resources, Indonesia has potential shale gas resources of 574 trillion cubic feet (tcf) in Sumatra Island, (233 tcf); Kalimantan Island ( 194 tcf); Papua Island, (90 tcf); Java Island (48 tcf); and in other locations (9 tcf).4
1 United States Energy Information Administration, “What is shale gas and why is it important”
346 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production
Despite these potentials and promises however, the unconventional gas business is still a subject of controversies in many countries. While the United States and Canada are already taking the lead in the shale gas boom, a greater part of Europe and Asia continue to view shale gas production with skepticism, particularly by asking questions on the quality and environmental sustainability of this resource.5 While pro- ponents of unconventional oil and gas point to the enormous economic potentials and benefits of exploring huge reserves of gas and oil that were previously prohibitively difficult to reach. Environmental advo- cates raise concerns about the adverse environmental implications of the multi-stage hydraulic fracturing technology through which shale gas is explored. For example, France, which is estimated to be have one of Europe’s largest deposit of shale gas at 180 trillion cubic feet, has
The Government of South Africa has finalized plans to issue shale gas exploration licenses in the first quarter of 2014. Several companies have already submitted work plans aimed at exploring for shale gas using hydraulic fracturing in the Karoo region. Falcon Oil & Gas Ltd, Shell, Sunset Energy and The Sasol/Chesapeake/Statoil JV are some of the early entrant into the shale gas market in South Africa. Falcon obtained an 11,600-mi2 (30,000-km2) Technical Cooperation Permit (TCP) along the southern edge of the Karoo Basin; while Shell obtained 71,400-mi2 (185,000-km2) TCP sur- rounding the Falcon area. Similarly, Sunset Energy holds a 1,780 mi2 (4,600-km2) TCP to the west of Falcon; while the Sasol/Chesapeake/Statoil JV TCP hold a permit covering 34,000-mi2 (88,000-km2) in the north of Shell and the Anglo Coal TCP cover an application area of 19,300 mi2 (50,000-km2) to the east of Shell’s TPC. See POTENSI ENERGI, “Potensi shale gas Indonesia capai 574 Tcf”
Volume 11 Number 3 April 2014 347 Jurnal Hukum Internasional already banned the procedure.6 Environmental concerns include issues of contamination of ground water, depletion of fresh water, risks to air quality, the migration of gases and hydraulic fracturing chemicals to the surface, subsurface trespass, performance assurance of multistage hydraulic fracking and the effects of activities on landscape.7 In South Africa, prospective shale gas exploration in Karoo region has been met with large protests and resistance due to the perceived environmen- tal problems associated with production technologies and processes.8 These questions remain unanswered and have even resulted in litigation in some countries.9 To address these concerns, there is a need for robust international policies and regulatory frameworks that could provide uniform guide- lines on sustainable shale gas production. This paper examines some of the legal and sustainability challenges that arise with shale gas explora- tion. This paper is divided into four parts, this introduction being the first. Part two examines the legal and sustainability issues in horizontal multi-stage fracking activities. Part three explores the prospects of an international approach that sets out detailed procedures and practices
6 Shale Gas Europe, “France” (2012)
348 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production to mitigate the environmental concerns associated with shale gas pro- duction, particularly how to ensure that shale gas production do not compromise public health and safety. The paper concludes in part four.
II. LEGAL AND SUSTAINABLE DEVELOPMENT ISSUES IN HY- DRAULIC FRACKING Hydraulic fracturing is a mechanical process, which involves the use of pressurized liquid to fracture rock layers so as to increase the permeability of the rocks and to increase the amount of gas produced from the rocks. It is a technique used to release natural gas including shale gas, tight gas, coal bed methane and coal seam gas, petroleum, or other substances for extraction.10 Hydraulic fracturing creates fractures from a wellbore drilled into reservoir rock formations. In the case of Coastal Oil & Gas Corp. V Garza Energy Trust, the Texas Supreme Court describes it as follows: Fracking is done by pumping fluid down a well at high pressure so that it is forced out into formation. The pressure creates cracks in the rock that propagate along the azimuth of natural fault lines in an elon- gated elliptical pattern in opposite directions from the well. Behind the fluid comes a slurry containing small granules called proppants-sand, ceramic beads, or bauxite are used that lodge themselves in the cracks, propping them open against the enormous subsurface pressure that would force them shut as soon as the fluid was gone. The fluid is then drained, leaving the cracks open for gas or oil to flow to the wellbore.11 The first experimental use of hydraulic fracturing was in 1947 and its first commercial success was with Stanolind Oil 12in 1949. Since
10 H Williams & C Meyers, Manual of Oil and Gas Terms (Lexis Nexis 2009). 11 (2008) C268 S.W 3d 1, 6-7, The United States Environmental Protection Agency also defines it as a temporary and intermittent process in which fluids are injected underground at high pressures to create fractures in the coals seam that enhance the recovery of methane gas by creating pathways for the gas to flow to the surface. See (2000) 65 Fed. Reg. 2889, 2892. See also Legal Environmental Assistance Founda- tion Inc. V U.S Environmental Protection Agency 276 F. 3d 1253, 1256. 12 C Montgomery and M Smith, ‘Hydraulic Fracturing: History of an Enduring Tech- nology’ (2010)
Volume 11 Number 3 April 2014 349 Jurnal Hukum Internasional then, it has become a popular mechanical process for extracting uncon- ventional oil and gas from hitherto hard to reach source rocks. As of 2012, it is estimated that close 2.5 million fracture operations have been performed worldwide, more than one million of them in the United States; and that 65% of all new oil and gas wells worldwide were being hydraulically fractured.13 Proponents of hydraulic fracturing point to the economic benefits of tapping from vast amounts of formerly inacces- sible reserves of gas and oil . In the US for instance, it has been credited for massive economic resurgence and a geometric expansion of energy production. Opponents point to potential environmental impacts, including contamination of ground water, depletion of fresh water, risks to air quality, the migra- tion of gases and hydraulic fracturing chemicals to the surface, subsur- face trespass, performance assurance of multistage hydraulic fracking and the effects of activities on landscape. Air pollution from hydraulic fracturing are related to CO2 and methane leaks originating from wells. Studies show that 3.6% to 7.9% of the methane from shale-gas produc- tion escapes to the atmosphere in venting and leaks over the lifetime of a well.14 There have also been concerns on groundwater methane contamina- tion.15 According to a 2011 study, there is increased evidence of natural gas (methane) migration into freshwater zones due to methane con-
13 G King, ‘ Hydraulic Fracturing 101: What Every Representative, Environmentalist, Regulator, Reporter, Investor, University Researcher, Neighbour and Engineer Should Know about Estimating Frac Risk and Improving Frac Performance in Unconven- tional gas and Oil Wells (2012) A Paper presented at the SPE Hydraulic Fracturing Technology Conference held in The Woodlands, Texas on 6-8 February 2012. See also EIA, ‘World Shale Gas Resources: An Initial Assessment’ (2011). 14 A Mazzoldi, A Rinaldi, A Borgia, & J Rutqvist, ‘Induced Seismicity within Geo- logical Carbon Sequestration Projects: Maximum Earthquake Magnitude and Leak- age Potential from Undetected Faults. (2012) 10 (1) International Journal of Green- house Gas Control 434-442. 15 R Jackson, S Osborn, A Vengosh, A. and N Warner, ‘Reply to Davies: Hydraulic Fracturing Remains a Possible Mechanism for Observed Methane Contamination of Drinking Water. (2011) Proceedings of the National Academy of Sciences 108 (43): E872.; ee R Davies, ‘Methane Contamination of Drinking Water Caused by Hydraulic Fracturing remains unproven. (2011) Proceedings of the National Academy of Sci- ences 108 (43): E871.
350 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production tamination stemming from hydraulic fracturing.16 For example in 2006, over 7 million cubic feet (200,000 m3) of methane were released from a blown gas well in Clark, Wyoming resulting in groundwater contami- nation. These air and water pollution from fracking come with short and long term health effects. Studies show a rise in respiratory diseases and health concerns in some US communities due to a community- wide exposure to airborne contaminants associated with shale explora- tion. Some studies also show that most residents of these communities would be diagnosed with cancer at some points in their lives due to the fact that airborne chemicals used during the fracking process, such as benzene and benzene derivatives, naphthalene, methylene chloride, are either carcinogenic or suspected as a human carcinogen to the human body.17 These environmental and health impacts of hydraulic fracking have resulted in a rise in campaigns against the process and in litigation. Due to the fact that hydraulic fracturing originated in the United States, there have been a plenitude of US environmental litigations on the side effects of hydraulic fracking and on subsurface trespass due to fracking. In the US, there are currently over 20 active lawsuits on con- tamination of ground water, soil. air and personal injury due to frack- ing. In most hydraulic fracturing litigation, the Plaintiff brings forward claims based on the torts of trespass, nuisance, negligence and strict liability.18 Plaintiffs have complained that fluids from an injection dis-
16 S Osborn, A Vengosh, N Warner, and R Jackson, ‘Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing. (2011) Proceedings of the National Academy of Sciences 108 (20): 8172-8176; see also J Lee, ‘Hydraulic Fracturing and Safe Drinking Water’ (2012) Proceedings of the US Environmental Protection Agency Technical Workshops for the Hydraulic Fracturing Study: Water Resources Management, Arlington, Virginia. 17 J Richenderfer, ‘Natural Gas Industry Effects on Water Consumption and Manage- ment. (2011) Susquehanna River Basin Commission. 40 p.
Volume 11 Number 3 April 2014 351 Jurnal Hukum Internasional posal well on a neighbouring property have intruded into the subsurface of their land. US courts have generally suggested that recovery in such cases can only be allowed where the Plaintiff is able to establish actual harm. In Coastal Oil & Gas v. Garza Energy Trust, 258 S.W.3d 1 (Tex. 2008), the court held that a subsurface invasion due to fracking which results in actual damages could constitute an actionable trespass. Courts in Colo- rado, Ohio and Oklahoma have also provided similar rulings in Board of Count Commisioners V Park County Sportmen’s Ranch LLP; Chance V BP Chemicals 77 Ohio St.3d 17, 670 N.E.2d 985; West Edmond Salt Water Disposal Association V Rosecrans 226 P.2d 965. Defendants in the US have tried to put up a defence to such claims by arguing that they have operated pursuant to government‑issued per- mits. In Railroad Comm’n v. Manziel, 361 S.W.2d 560 (Tex. 1962), the court explicitly stated that it was not granting operators a “protective cloak”; as such a permit does not preclude all liability for trespass. In the 2011 case of FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 351 S.W.3d 306 (Tex. 2011) the Texas Supreme Court, held that a permit is not a “get-out-of-tort-free card” and as such it is an error to hold that because the Texas Commission on Environmental Quality permitted the injection wells, there was no trespass. Some companies have also sough to rely on the ‘Rule of capture’ as a possible defence. The rule of capture provides that if a landowner drills a well on their property, and the well does not trespass onto a neighbour’s property, then the landowner is entitled to all the oil or gas produced by his well, even if the well drains oil or gas from beneath his neighbour’s property. Simply put,a landowner who extracts or “cap- tures” groundwater, oil, or gas from a well that bottoms within the sub- surface of his land acquires absolute ownership of the substance, even if it is drained from the subsurface of another’s land.19 . However in Coastal Oil & Gas v. Garza Energy Trust, it was held that even though the rule of cap- al., ‘Regulatory and Liability Issues in Horizontal Multi-Stage Fracturing’ (2012), 50 Alberta Law Review 403. 19 The cases of Ohio Oil Co. v. Indiana, 177 U.S. 190, 203 (1900); Acton v. Blundell, 12 Mees. & W. 324, 354, 152 Eng. Rep. 1223, 1235 (Ex. Ch. 1843); Kelly v. Ohio Oil Co., 49 N.E. 399 (Ohio) illustrate the rule of capture
352 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production ture affords forgiveness for subsurface drainage. It is doubtful whether this rule would protect producers from liability where fracking causes communication between wellbore and a gas storage reservoir. In the Canadian case of Ernst V Encana Corp. (amended statement of claim filed on 21 April 2011), Ms. Jessica Ernst alleged thatEn- cana contaminated her water supply as a result of fracking operations. She claimed that her water is now so contaminated that it can be lit on fire. The lawsuit was therefore filed against Encana, the Alberta Energy Resources Conservation Board, and the Alberta Government for con- tamination of her property and drinking water due to Encana’s frack- ing program. Causes of action alleged by Ernst against Encana, include negligence, nuisance, strict liability and trespass. The plaintiff sought general damages of $500,000, special damages of $100,000, aggravated damages of $100,000, restitutionary damages of $1million and punitive and exemplary damages of $10 million. As of today, judgement has not been given. The second case was filed by one oil and gas company against an- other seeking damages for unlawful hydraulic fracturing operations conducted by the latter company. In Cross Alta Gas Storage and Servic- es v Bonavista Energy Trust (11 January 21011) Calgary 0901-15314 ( Alta QB), the Plaintiff alleged that in 2001, a natural gas well that had been abandoned since 1980 was fracture-stimulated and put back in production, resulting in unlawful gas production by the defendants. The Plaintiff’s claim relies on theories of conversion, unjust enrichment and unlawful interference with economic interests. The Plaintiff sought an order asking the defendant to shut in and abandon the well; general damages in the sum of $40 million and punitive damages of $500,000. On 11 January 2011, the Alberta Court of Queen’s Bench issued an in- terim injunction directing that the well be shut-in pending the determi- nation of the suit. The substantive suit however remains undetermined. These cases demonstrate some of the legal and sustainable devel- opment issues that unconventional oil and gas exploration through the hydraulic fracking process has generated. More than ever, communities and landowners are raising concerns on the sustainability of this pro- cess, resulting in a plenitude of subsurface intrusion litigations based on the torts of trespass, nuisance, negligence and strict liability.
Volume 11 Number 3 April 2014 353 Jurnal Hukum Internasional tional oil and gas production by reducing the environmental side ef- fects. By establishing a legal framework which is built on a compulsory sustainable development screen for projects, the environmental and health impacts of unconventional oil and gas production could be hol- istically addressed. The most commonly cited definition of sustainable development is the definition provided by the Brundtland Commission: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.20 The idea of sustainable development allows us to balance economic gains with environmental protection, without one conflicting with the other. The concept of sus- tainable development advocates development that promotes economic development, environmental protection, social development, (which in- cludes the fulfilment of fundamental human rights) in a balanced, mu- tually supportive and integrated manner. Some of the health and environmental impacts of hydraulic frack- ing touch directly on human rights. Without adequate protection for the environment while pursing the economic benefits of unconventional oil and gas production, the human right to health and life would be sub- stantially threatened.21 Hydraulic fracking projects that pollute the en- vironment pose direct threats to human survival and to the enjoyment of the right to life. The adverse health impacts of hydraulic fracking could also constitute a violation of the right to health. As such, there is a need for an approach that mainstreams the pro- tection of the right to life and other human rights into the design and execution of unconventional oil and gas projects. Without good health, the ability to enjoy the economic prosperity brought by unconventional
20 The United Nations World Commission on Environment and Development Report (the Brundtland Report) Our Common Future (OUP 1987). 21 See also, The Preamble to the Aarhus Convention, which links human rights and environment. It notes that adequate protection of the environment is essential to the enjoyment of basic human rights. UNECE, Aarhus Convention on Access to Informa- tion, Public Participation in Decision-Making and Access to Justice in Environmen- tal Matters (Adopted 25 June 1998, entered into force 30 October, 2001) No. 37770
354 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production oil and gas production would be significantly threatened.22 Economic growth that is anchored on the respect of the fundamental human rights of citizens is a pre-requisite and a pre-condition for achieving sustain- able development.23 To avoid a trade off between the economic pros- pects of unconventional oil and gas production and its environmental side effects, there is a need to balance unconventional oil and gas pro- duction with the goal of respecting and protecting fundamental human rights. The indicators for assessing sustainability embody the balancing of the two complementary pursuits that are often portrayed as opposing: economic growth and respect for human rights. It is necessary to ex- pound these indicators as necessary criteria that a project must meet
22 As Herophilus the Physician to Alexander the Great wrote in his often quoted poem: ‘When health is absent Wisdom cannot reveal itself, Art cannot become manifest, Strength cannot fight, Wealth becomes useless and intelligence can- not be applied’ Encyclopedia of World Biography Supplement (Vol. 25, Thomson Gale 2005). 23 Ever since the 1986 United Nations Declaration on Development described the lack of attention for the implementation, promotion and protection of civil, political, economic, social and cultural rights as one of the obstacles to development; and that the promotion of, respect for and enjoyment of certain human rights and fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms, many scholars have argued that respect, protection and fulfilment of human rights is crucial to achieving sustainable development. This is the argument that human rights and sustainable development are interdependent and mutually reinforcing concepts. One cannot be achieved without the other. This idea was affirmed at the World Con- ference on Human Rights in the 1993 Vienna Declaration and Programme of Action, which stated that democracy, development, respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. It was acknowledged that the full enjoyment of human right requires durable economic and social progress, and vice versa: in other words, there cannot be full attainment of human rights without development, nor can there be development without respect for human rights. See also Resolution 1819 of the General Assembly of the Organization of American States which asserts that: “the effective enjoyment of all human rights, including the right to education and the rights of assembly and freedom of expression, as well as full enjoyment of economic, social, and cultural rights, could foster better environmental protection by creating conditions conducive to modification of behavior patterns that lead to environmental degradation, reduction of the environmental impact of poverty and of patterns of unsustainable development…” We support this argument. This pa- per argues that without explicit safeguards, policies and projects intended to advance economic goals can have serious negative impacts on fundamental human rights.
Volume 11 Number 3 April 2014 355 Jurnal Hukum Internasional before it can be approved under a sustainable development threshold. By exploring the main linkages between projects and their impact on the economic, environmental and social pillars of SD (which includes respect for human rights), countries can design and execute projects that adopt cleaner technologies that could minimize the environmental and health impacts of hydraulic fracking.
IV. Sustainable Shale Exploration Matrix During the project planning phases, it is important that companies consider and demonstrate through a comprehensive work plan, how each of the criteria of sustainability will be met and complied with. The work plan must not only be anticipatory by demonstrating how issues of water contamination, waste and effluent discharge and air contamina- tion will be prevented and/or addressed; the work plan must also dem- onstrate how an exploration project would provide positive long term benefits to residents of the communities where projects will be located. Examples of factors to be demonstrated under a Sustainability Ma- trix include:
A. The Economic Criteria For a project to be considered sustainable, it should lead to eco- nomic growth, financial returns and profits to local entities, increased investments in priority sectors, generation of local employment oppor- tunities, a positive balance of payments. A project must lead to an im- provement in economic activities in the host community and should add to the economic development of the country as a whole. Project plan- ners must demonstrate how much economic benefits and contributions an exploration project will provide within a specific period of time. The economic indicator is a major advantage of unconventional oil and gas production. For example, in 2011 alone, the USA produced 8,500,983 million cubic feet of natural gas from shale gas wells, a value of about $36 billion, due to shale gas alone. This increase in value pro- duced has resulted in a net increase in employment rate in the US, with employment rate at the end of 2012 at its highest since 1987. Natural gas imports into the US also decreased by 25 percent between 2007 and
356 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production
2011, while petroleum imports dropped from a high of 29.248 quadril- lion Btu in 2005 to 24.740 in 2011. The Energy Information Adminis- tration (EIA) predicts with sustained shale gas production, the USA will by 2020 become a net exporter of natural gas. These figures show that unconventional oil and gas production will undoubtedly contribute to economic activities an growth in countries with commercial deposits.24 However these economic potentials must be balanced with the other indicators of sustainable development under a sustainable development screen for projects.
B. The Social Criteria Unconventional oil and gas exploration should result in increased social benefits, equity and improved quality of life in the hostcom- munity. Examples include non-interference with clean water supply; reduced air and water contamination; adequate disaster response mea- sures to prevent and to mitigate local impacts. Unconventional oil and gas exploration should not worsen water and air conditions in drill sites and communities. Oil production activities must not result in the viola- tion of human rights of the public. As such, any project that produces human rights impacts or does not positively improve the quality of life for residents cannot be adjudged as leading to sustainable development. The desired outcome under this indicator therefore is that unconven- tional oil and gas exploration activities must be planned and executed in a manner that they could contribute to the quality of life in the project communities. For example, residents of Karoo in South Africa have resisted shale gas exploration due to the risks associated with produc- tion, particularly concerns that fracking could result in water shortage and could worsen already low standard of living in the region.25 There
24 Estimates of global deposits of Shale Oil range from 2.8 to 3.3 trillion barrels of re- coverable oil. There are around 600 known oil shale deposits around the world. Even though Shale Oil deposits can be found in about 33 countries, the United States, Rus- sia and Brazil together account for 86% of the world’s resources in terms of shale-oil content. Additional deposits are found in Australia, Indonesia, India, Sweden, Estonia, Jordan, France, Germany, Brazil, Morocco, China, and Southern Mongolia. See EIA, ‘World Shale Gas Resources: An Initial Assessment’ (2011). 25 In October 2013, more than 200 people marched nearly 3 km to the Shell offices located in the Foreshore are of Cape Town to protest hydraulic fracturing in South
Volume 11 Number 3 April 2014 357 Jurnal Hukum Internasional are also concerns that the social benefits and employment to be gener- ated may be negligible in terms of actual numbers and overall sustain- ability. One importance of adopting a coherent sustainability matrix is that it allows governments and local stakeholders the opportunity to ask companies to demonstrate the actual benefits to be created by a project at the planning an approval stages, and to review these figures with the actual local benefits over a given period of time.
C. The Environmental Criteria This is arguably the most important criterion of all. Projects should lead to progress in environmental issues, including reduction of meth- ane, CO2 and other green house gases (GHGs), reduced air and water pollution, conservation of local resources, improved health and reduced pressure on local environments. To achieve this, oil companies must invest in cleaner methods of production that could eliminate the risks of methane leakage, water contamination, air pollution and high levels of radioactivity in wastewater. The desired outcomes are to maintain a sustainable level of non- saline water use; maintain quality of surface water and non-saline groundwater; conserve resources, minimize waste, prevent pollution, and protect the environment and the public; ensure that the public and the environment are not measurably affected by adverse air quality; maximize economic recovery of reservoir fluids and conservation of gas and to ensure that oil and gas production activities do not compro- mise public safety. The above discussed sustainability indicators could be adopted as tools for designing provincial or national shale gas exploration policies for project participants. What these indicators emphasize is the need to balance economic prospects of shale gas exploration methodologies and technologies with the local environmental and social impacts, such
Africa. According to the Treasure Karoo Action Group chief executive Jonathan Deal, the march was intended to show the government that people would not stand for the damage fracking would do to the environment. «We are very concerned about the environmental impact, especially because fracking is not regulated in South Africa”. According to Deal, The nation’s plans to exploit shale-gas reserves are “indefensible” and will lead to a legal battle, Treasure Karoo Action Group Chief Executive Officer Jonathan Deal said Oct. 16.
358 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production that progress on one does not result in problems in the other. In the cur- rent economy, it is unrealistic to abandon very promising alternatives to oil production when statistics continue to show how much resource rich countries such as Canada, United States, Australia, Indonesia, South Africa and European countries could benefit from unconventional oil and gas. Adopting a sustainability matrix would however serve as a holistic regulatory response that could enable countries to balance the economic effects with the social and environmental aspects. An argument could be made for setting international regulatory standards that would ensure that global unconventional oil and gas pro- duction are sustainable in the short and long term. Since shale gas ex- ploration has already generated global attention, specifically with more Asian and African countries now designing local plans on how to tap into the shale gas boom, there is a need for a body at the level of na- tional governments to establish international guidelines on sustainable shale gas exploration. To achieve this standardization, there is a need to develop an International Legal Framework on Unconventional Oil and Gas Production, that would establish a compulsory sustainable de- velopment screen for unconventional oil and gas production activities. Perhaps this framework could be established under the auspices of the United Nations Environment Program or the International Maritime Organization.26 Under this framework, oil companies would be required to demon- strate that their project activities will have clear sustainable develop- ment benefits through a mandatory Detailed Impact Assessment (DIA). Companies must be required to assess the risk that their project activ- ities will have a severe negative environmental, social and/or economic impact through a ‘Do No Harm’ Assessment. This is in line with the United Nations Guiding Principles for the Implementation of the UN “Protect, Respect and Remedy” Framework which calls on companies,
26 While UNEP is an international institution that coordinates United Nations environ- mental activities, the International Maritime Organization (IMO) is a United Nations specialized agency, with a mandate to promote safe, secure, environmentally sound, efficient and sustainable shipping. Within its environmental mandate, IMO has de- veloped and adopted a range of international instruments to address marine pollution which include the United Nation on Civil Liability for Oil Pollution Damages, 29 November, 1969, 14097 U.N.T.S.355 (entered into force on 14 June 1981).
Volume 11 Number 3 April 2014 359 Jurnal Hukum Internasional business enterprises and multinational corporations to avoid the human rights impacts of projects on host communities.27 Though not legally binding, the UN Guiding Principles, provide an authoritative global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activities such as oil production. By adopting a sustainable development screen, projects that fail to satisfy the above sustainable development threshold would be identified and would not be allowed to continue as they could be detrimental to human health and life. Through such screen there would be an increased potential of mitigating and eliminating the high en- vironmental side effects of unconventional oil and gas production such that its enormous economic potentials would not be lost in transit. This is a win-win scenario.
V. CONCLUSION Despite the enormous economic potentials of producing oil from the world’s vast reserves of unconventional sources, the environmental and health effects have continued to generate scepticisms about the short and long term sustainability of this energy source. Apart from concerns and litigations generated in Canada, and the United States, environ- mental stakeholders in countries such as Indonesia, South Africa, and Mexico continue to question the environmental impacts of shale gas production. This paper has argued the environmental and social impacts of shale gas exploration could be addressed by establishing mandatory sustaina- bility requirements or matrix that must be complied with by prospective oil and gas companies in project planning and in selecting production technologies and methodologies. The paper has discussed the sustain- ability matrix as a pre-requisite for attaining a framework for a ‘win- win scenario’ with regards to the economic and environmental aspects of unconventional oil and gas production. Through this framework the economic potentials of unconventional
27 J Ruggie, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’ (2011) A/HRC/17/31.
360 Volume 11 Number 3 April 2014 Regulating Unconventional Oil And Gas Production oil production could be maximized while minimizing its environmental side effects. By adopting the sustainable development matrix at nation- al and international levels, the economic goals of unconventional oil production could be balanced with environmental and social protection goals, including the protection of fundamental human rights affected by pollution from shale gas exploration sites. An international legal frame- work will particularly standardize these requirements such that oil com- panies may be held to the same level of accountability irrespective of whichever country production activities will take place. Through the sustainable development matrix, oil companies would be required to demonstrate the likely impacts of technologies, process- es and procedures adopted for unconventional oil production on the rights and welfare of communities. Companies would also be mandated to adopt international best practices, technologies and internal control mechanisms to ensure that oil and gas production activities do not result in negative health and environmental impacts; and that adequate re- sponse measures are put in place in case of such impacts. Arguably this matrix would ensure a drastic reduction in air and ground water con- tamination that have been associated with sustained hydraulic fracking technologies. It would also ensure that the public and the environment are not measurably affected by oil and gas production activities.
REFERENCES Altun, N, C Hiçyilmaz, J Hwang, A Suat Bağci, & M Kök, ‘Oil Shales in the World and Turkey; Reserves, Current Situation and Future Prospects: A Review’ (Es- tonian Academy Publishers 2006 ) 23 (3) Chapman, A., ‘Core Obligations Related to the Right to Health’ in A Chapman, S Russell, eds. Core Obligations: Building a Framework for Economic, Social and Cultural Rights. (Intersentia 2002) Colborn, T, C Kwiatkowski, K Schultz, K. and M Bachran, ‘Natural Gas Operations from a Public Health Perspective’ (2011) 17 (5) Human and Ecological Risk As- sessment 1039-1056 Davies, R., ‘Methane Contamination of Drinking Water Caused by Hydraulic Fractur- ing remains unproven. (2011) Proceedings of the National Academy of Sciences 108 (43): E871. Environmental Protection Agency, “Draft Plan to Study the Potential Impacts of Hy- draulic Fracturing on Drinking Water Resources (2012) Geny, ‘Can Unconventional Gas be a Game Changer in European Gas Markets’ (Ox- ford Energy Institute 2012)
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Jackson, R., S Osborn, A Vengosh, A. and N Warner, ‘Reply to Davies: Hydraulic Fracturing Remains a Possible Mechanism for Observed Methane Contamination of Drinking Water. (2011) Proceedings of the National Academy of Sciences 108 (43): E872 Keith Luft et al., ‘Regulatory and Liability Issues in Horizontal Multi-Stage Fractur- ing’ (2012), 50 Alberta Law Review 403 King, G., ‘ Hydraulic Fracturing 101: What Every Representative, Environmentalist, Regulator, Reporter, Investor, University Researcher, Neighbour and Engineer Should Know about Estimating Frac Risk and Improving Frac Performance in Unconventional gas and Oil Wells (2012) A Paper presented at the SPE Hydraulic Fracturing Technology Conference held in The Woodlands, Texas on 6-8 Feb- ruary 2012. See also EIA, ‘World Shale Gas Resources: An Initial Assessment’ (2011). Lee, J., ‘Hydraulic Fracturing and Safe Drinking Water’ (2012) Proceedings of the US Environmental Protection Agency Technical Workshops for the Hydraulic Frac- turing Study: Water Resources Management, Arlington, Virginia. Lund, A., ‘ Europe, the New Frontier in Shale Gas Rush’ (Financial Tines, 7 March 2010). Mazzoldi, A., A Rinaldi, A Borgia, & J Rutqvist, ‘Induced Seismicity within Geo- logical Carbon Sequestration Projects: Maximum Earthquake Magnitude and Leakage Potential from Undetected Faults. (2012) 10 (1) International Journal of Greenhouse Gas Control 434-442. Montgomery C., and M Smith, ‘Hydraulic Fracturing: History of an Enduring Tech- nology’ (2010)
362 Volume 11 Number 3 April 2014 FORBIDDEN FUNDS – INDONESIA’S NEW LEGISLATION FOR COUNTERING THE FINANCING OF TERRORISM
Adam Fenton* and David Price **
Abstract
In March 2013 the Indonesian Parliament passed the Prevention and Eradication of Terrorism Financing Act (Law No.9 2013). Enactment of the legislation ostensibly brought Indonesia into line with its commitments under international law as a signatory to the International Convention for the Suppression of Financing of Terrorism (1999) which Indonesia signed in September 2001 and ratified in 2006. While Indonesia’s existing, hastily-drafted anti-terrorism legislation (Law No.15 2003) contained a brief provision criminalising the funding of terrorism, this latest and much more significant statute is intended to shore up any gaps within the legislative regime already in place. It also provides for a central governmental agency, namely the Centre for Financial Transactions and Reporting (PPATK – Pusat Pelaporan Analisis Transaksi Keuangan), to have both authority and responsibility for the monitoring of suspicious financial transactions. While the legislation establishes the legal basis for PPATK’s role in countering the financing of terrorism, it also places significant obligations on financial services providers to monitor and report any suspicious transactions to PPATK – as well as obligations to “know your customer” – with significant penalty provisions for failure to do so. However, despite the enactment of this latest legislation to counter the funding of terrorism, the Financial Action Task Force (FATF), an inter-governmental standard-setting agency under the auspices of the Organization for Economic Co-operation and Development (OECD), has kept Indonesia on its list of ‘high risk and non-cooperative jurisdictions’. This paper examines the international law background to the new counter-terrorism financing legislation, the substantive sections of the Act, and the obligations it places on commercial financial services providers. It also examines the legislative regime’s deficiencies and criticisms.
Keywords: Transnational Organized Crime,Terrorism,Prevention and Eradication of Terrorism Financing Act
I. INTRODUCTION On 13 March 2013, Indonesian President Susilo Bambang Yudhoyono, and Minister for Law and Human Rights Amir Syamsudin signed into existence the Prevention and Eradication of Terrorism Financing Act (Law Number 9 of 2013) (Undang-undang Pencega- han dan Pemberantasan Tindak Pidana Pendanaan Terorisme 2013)
* Doctoral candidate, School of Law, Charles Darwin University, Australia. This paper is based on a presentation at the 4th CILS International Law Conference on Transnational Organized Crime, Banda Aceh, Indonesia, October 2013. ** Associate Professor, School of Law, Charles Darwin University.
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(hereinafter the “Act”). At 49 pages, including explanatory notes, the Act is a substantial yet economically-worded piece of legislative drafting. The Act represents Indonesia’s visible, legislative commitment to the principles of the International Convention for the Suppression of Financing of Terrorism 1999 (hereinafter the “Convention”), and the complementary special recommendations of the OECD’s Financial Action Task Force (FATF). Despite the enactment of this ‘comprehensive’ legislation for countering the financing of terrorism1 (otherwise generally known as “CFT” legislation), FATF in June 2013 publicly acknowledged that Indonesia had made some progress to give effect to its obligations under the Convention, but continued to include Indonesia on its list of ‘high risk and non-cooperative jurisdictions’ (FATF 2012, pp. 31-2; 2013a). It noted that Indonesia had “not made sufficient progress in implementing its action plan within the agreed timelines” and that “certain strategic AML/CFT2 deficiencies remain regarding the establishment and implementation of an adequate legal framework and procedures for identifying and freezing of terrorist assets” (FATF 2013a, p. 3). This paper examines Indonesia’s enactment in 2013 of its new law for the countering of the financing of terrorism, taking account of the various international conventions and United Nations resolutions which gave impetus to the Act’s emergence. It locates the Act within Indonesia’s counter terrorism legislative framework and considers whether the salient features of the new law appropriately meet the Act’s objectives, particularly in view of the FATF’s ongoing criticism of Indonesia’s performance in this regard. The paper argues that the Act is a commendable and timely attempt to monitor and eradicate funding of terrorism activities, its implementation falls somewhat short of those established international standards and conventions, as well as Indonesian domestic imperatives. While CFT has not been a central element in Indonesia’s counter terrorism operations to date, globally, CFT has been of key importance in the war on terror and the prevention of terrorist attacks. As Barrett 1 In this paper FATF usage of the acronym ‘CFT’ is followed, namely, ‘countering the financing of terrorism’.The acronym CTF “counter-terrorism financing” is also commonly seen in discussions of this topic. 2 “AML/CFT” – Anti-money laundering/countering financing of terrorism
364 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism notes, the last major bomb attack on a western country were the London bombings of 20053. He points out that: Ten years after 9/11 it is inconceivable that any terrorist group, let alone one connected to al-Qaeda, could raise enough money to launch an attack on a similar scale through donations. Given the scrutiny of and visibility of transactions in the formal banking system any financier of terrorism would take a huge risk were he to transfer money to a known terrorist entity. (Barrett 2012, p. 719) Countering the financing of terrorism s therefore of key importance in combating terrorism per se. CFT laws are potentially an extremely powerful weapon in the hands of law enforcement agencies to disable terrorist groups and individuals. They can prevent terrorist attacks by cutting off the flow of funds to terrorist groups – depriving them of resources needed to purchase weapons, for example. But CFT laws also function by criminalising the act of funding terrorism, so that persons or organisations knowingly providing any kind of funds for a terrorist act, individual or group, are committing a crime - even when they had no intention of taking part in an actual terrorist attack themselves. CFT laws also expose “money trails” which may generate previously unknown leads, and which can force terrorists to use more costly and high risk means of funding their activities – making them more susceptible to detection. (FATF 2013b) Terrorism, and by necessity the funding of terrorism, are still live and serious issues in Indonesia. While there have been no major bomb attacks on foreign targets since 2009, low level violence primarily between terrorist groups and the police continues – four police officers were killed by suspected terrorists in the month of August 2013 alone (Meida 2013). During the writing of this paper another police officer was fatally shot in Central Jakarta (Marhaenjati 2013). And the threat of a major bomb attack remains –in August, a bomb exploded in a Jakarta Buddhist temple injuring three people; the attack was allegedly in response to violence against Rohingya Muslims in Myanmar (Natahadibrata 2013; Sandro Gatra 2013). Terrorist cells have shown
3 Barrett’s article was written in 2012, before the Boston marathon bombing of April 2013. With three fatalities and 264 injured it is arguably a major bombing, however it is clearly not on the same scale as the 9/11 attacks.
Volume 11 Number 3 April 2014 365 Jurnal Hukum Internasional remarkable resilience and ingenuity, in respect of their funding efforts. Groups have resorted to many forms of crime to fund their activities, including bank robbery, motorcycle and jewellery theft, smuggling, narcotics trading, posing as mobile phone-card agents, and even operating businesses under the guise of corporate social responsibility or welfare activities (Globe 2012; ICG 2012). Most recently, internet fraud has emerged as potentially a major source of funds. In May 2012, the head of the National Counter-terrorism Agency, Ansyaad Mbai, commented that counter-terrorism officers had arrested 11 suspects who had hacked into multi-level marketing websites and stole over Rp8 billion (over US$800,000) to fund terrorist training camps, and purchase explosive materials (Globe 2012). It should be noted that Indonesian terrorist groups have not yet resorted to kidnapping for ransom as a source of funds, a common practice among African terrorist groups. Clearly therefore, an effective CFT regime is urgently needed in Indo- nesia. However, to function effectively as a method of law enforcement a CFT regime requires the knowledge and cooperation of government departments, law enforcement agencies and private financial institutions. It is therefore essential for all parties to be aware of, and implement these CFT laws – not only for the common good of fighting and preventing terrorist violence. All financial services providers operating in Indonesia, both formal and informal, are subject to this legislation – and it contains substantial penalties for non-compliance. For example, Article 13 of the Act provides that a financial service provider which fails to report a ‘sus- picious transaction’ to PPATK within three days of becoming aware of it, faces a penalty of up to Rp1 billion (approximately US$100,000). It is therefore essential for any provider operating within Indonesia to be fully aware of their obligations under the Act.
II. THE INTERNATIONAL LAW BACKGROUND In her analysis of CFT, McGarritty argues that the international counter- terrorism financing regime “can best be described as a ‘patchwork’ of international instruments. Whilst each of these instruments requires states to criminalise the financing of terrorism, there are important points of distinction in the detail” (McGarrity 2013, p. 55).
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The international law response to terrorism and terrorism financing goes back well before the terrorist attacks on New York’s World Trade Centre of 9 September 2001 (universally recognised as the most egregious of terrorist attacks and simply known as “9/11”). For example, the United Nations (UN), an organisation founded on the highest principles of peace, justice, human rights and friendly relations between states, has, for decades, condemned acts of aggression and terrorism by both states and non-state actors. General Assembly Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States of October 1970 (UN 1970) and General Assembly Resolution 3034 (XXVII) Measures to Prevent International Terrorism of December 1972 (UN 1972) both condemn terrorist acts without prescribing clearly and unequivocally what constitutes terrorism. Resolution 3034 Article 4, for example, “condemns the continuation of repressive and terrorist acts by colonial, racist and alien regimes in denying peoples their legitimate right to self-determination and independence and other human rights and fundamental freedoms”. Twenty years later, General Assembly Resolution 46/51 Measures to Eliminate International Terrorism of December 1991 (UN 1991) recalls no less than nine of its resolutions and declarations from the 1970s and 1980s. The Preamble again expresses the UN’s deep disturbance at “the world-wide persistence of acts of terrorism in all its forms … including those in which States are directly or indirectly involved”. General Assembly Resolution 49/60 Measures to Eliminate International Terrorism of December 1994 (UN 1994) contains the first specific reference to the act of financing of terrorism. Reminiscent of the wording of Resolutions 2625 (XXV) of October 1970 and 46/51 of December 1991, Resolution 49/60 once again recalls the growing list of resolutions, declarations, treaties and conventions4 on terrorism, and
4 Resolution 49/60 Preamble recalls that “the existing international treaties relat- ing to various aspects of the problem of international terrorism [include], inter alia, the Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963, the Convention for the Suppression of Unlawful Seizure of Aircraft 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Avia- tion 1971, the Convention on the Prevention and Punishment of Crimes against In- ternationally Protected Persons, including Diplomatic Agents 1973, the International
Volume 11 Number 3 April 2014 367 Jurnal Hukum Internasional condemns all acts of international terrorism. An important difference, however, is the inclusion of the crucial term “financing” in its language. Article 5(a) of the Resolution calls on states to “refrain from organizing, instigating, facilitating, financing, encouraging or tolerating terrorist activities” within their respective territories (emphasis added). But, as McGarritty points out, “a substantial portion of the funds used for terrorist activities is now provided by private individuals and organisations rather than states” (McGarrity 2013, p. 57). General Assembly Resolution 51/210 Measures to Eliminate International Terrorism of December 1996 (UN 1996), recognises this weakness and, stressing the need for international and regional cooperation, specifically calls upon States, at paragraph 3(f): To take steps to prevent and counteract, through appropriate do- mestic measures, the financing of terrorists and terrorist organizations, whether such financing is direct or indirect through organizations which also have or claim to have charitable, social or cultural goals or which are also engaged in unlawful activities such as illicit arms trafficking, drug dealing and racketeering, including the exploitation of persons for purposes of funding terrorist activities Paragraph 3(f) continues: and in particular to consider, where appropriate, adopting regulatory measures to prevent and counteract movements of funds suspected to be intended for terrorist purposes without impeding the freedom of legitimate capital movements. (UN 1996, p. 3(f)) Importantly, paragraph 9 establishes an ad hoc committee to develop a “comprehensive legal framework of conventions dealing with international terrorism.” (UN 1996, p. 5 Para 9) While work on this comprehensive framework is ongoing, importantly for this discussion, the ad hoc committee’s deliberations led to the creation and adoption Convention against the Taking of Hostages 1979, the Convention on the Physical Protection of Nuclear Material 1980, the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Avia- tion 1988, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf 1988, and the Conven- tion on the Marking of Plastic Explosives for the Purpose of Detection 1991.”
368 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism by the General Assembly, by Resolution 54/109 of 9 December 1999 (UN 1999a), of the International Convention for the Suppression of the Financing of Terrorism (the “Convention”). As later discussed, the Convention (along with FATF recommendations) provides the legal framework and principles upon which Indonesia’s domestic legislation is based. Indeed, several of the provisions in the domestic legislation mirror key articles of the Convention. Firstly, Convention article 1(1) provides a very broad definition of “funds” which includes “assets of every kind whether tangible or intangible, moveable or immoveable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit.” Secondly, it sets out a definition of a ‘terrorist act’ and criminalises financial support for that act. Given that defining terrorism has been described as “a futile polemical exercise” and “the Bermuda Triangle of terrorism” (Schmid 2011, p. 42), this is a significant achievement – even if the definition is only for the limited purposes of the CFT regime in the Convention. Article 2(1) creates an offence for any person who, directly or indirectly, unlawfully and wilfully provides or collects funds with the intention that they should be used in full or in part in order to carry out: (a) An act defined in one of the treaties listed in the Annex5, or: (b) Any other act intended to cause death or serious bodily injury to
5 The nine conventions listed in the Convention Annex include the following: Convention for the Suppression of Unlawful Seizure of Aircraft, 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; Con- vention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973; International Convention against the Taking of Hostages, 1979; Convention on the Physical Protection of Nuclear Material, 1980; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1988; Convention for the Suppres- sion of Unlawful Acts against the Safety of Maritime Navigation, 1988; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, 1988; International Convention for the Suppression of Terrorist Bombings, 1997.
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a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. Article 2(1)(a) above may be problematic as it depends on which of the twelve terrorism conventions a state has ratified. Article 2(1)(b) rectifies this to some extent by effectively providing a working defini- tion of a terrorist act – in a nutshell, any act intended to cause death or serious injury to civilians with the purpose of creating fear or coercing a government. Article 2(3) establishes that it is not necessary for the funds to actually have been used to carry out a terrorist act. Articles 2(4) and 2(5) create additional offences for those who attempt, participate as an accomplice, organize or direct others, or contribute to the commission of an offence under Article 2(1) – that is, inchoate offences. The Convention further requires, pursuant to Article 4, that State Parties create criminal offences (with corresponding penalties that reflect the seriousness of the offences) in their domestic law based on the offences set forth in Article 2. Further, the offences must also apply to “legal entities” which commit the offences, and extra-territoriality provisions must be applied as well. For example, where an offence is committed on board a ship flying the flag of the state, or where a national of that state commits a terrorist act in another country, that state may establish jurisdiction to prosecute the offence. State Parties are also required to take measures to provide for the freezing, seizure and forfeiture of funds allocated for terrorist acts (article 8), and to prosecute or extradite, where they become aware that an offender is within their jurisdiction (articles 9 and 10). The offences set out in Article 2 are expressly extraditable offences, and the Convention stresses the need for international cooperation in the investigation and prosecution of offenders. Convention article 18 stipulates the obligations and regulations to be applied to financial institutions such as identification of customers and the reporting of suspicious transactions. As discussed later, these principles are enunciated in more detail in FATF’s Special Recommendations. It is interesting to note that the Convention opened for signature from
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10 January 2000 until 31 December 2001 (Article 25.1), and required 22 ratifications to enter into force (Article 26). But by early September 2001, it had been ratified by only four states. However, following the 9/11 terrorist attacks and UN Resolution 1373, the Convention was rapidly ratified by many states and came into force on 10 April 2002. Indonesia signed the Convention on 24 September 2001 (Husein 2012, p. 15) and ratified it by Act of Parliament in 2006 (Undang-undang Nomor 6 Tahun 2006 Tentang Pengesahan International Treaty for the Suppression of the Financing of Terrorism 1999 2006). In considering the UN response to CFT, two Security Council resolutions are of particular significance, namely Resolution 1267 of 1999 (UN 1999b) and Resolution 1373 of 2001 (UN 2001). Resolution 1267 was aimed specifically at disabling the Taliban, and Al Qaida, and required states to freeze any funds connected to the Taliban. It also established the “1267 Committee”, tasked with creating a list of individuals and organisations associated with Al Qaida, for whom states are required to freeze their assets “without delay”. The list contains several Indonesian nationals and organisations including Abu Bakar Bashir, Umar Patek and the Jemaah Anshorut Tauhid (JAT) amongst others (UN 2013). As discussed later, the implementation of this list and the significance of freezing of assets “without delay” is one of the main stumbling blocks faced by Indonesia. Resolution 1373 was issued on 28 September 2001, just over two weeks after 9/11, and is broader in its application than Resolution 1267. Amongst other provisions, it “decided” that all states shall “prevent and suppress the financing of terrorist acts” by criminalising the provision or collection of funds for terrorism and by freezing funds of persons who commit terrorist acts. Broadly speaking, the obligations of Resolution 1373 are similar to those under the Convention with one major exception – the Convention defines a terrorist act. This may be one reason why under Article 3(d) States are called upon to “become parties as soon as possible to the relevant international conventions...including the Convention for the Suppression of the Financing of Terrorism of 1999” (UN 2001, p. 3 Para d). While there are considerable overlaps between the Convention and Resolution 1373, together they form a much stronger and more
Volume 11 Number 3 April 2014 371 Jurnal Hukum Internasional comprehensive CFT regime. For example, the Convention contains provision for preventative mechanisms - such as customer identification and reporting of suspicious transactions - that are not mentioned in Resolution 1373. On the other hand, Resolution 1373 creates the Counter-Terrorism Committee which is specifically tasked with pursuing implementation by various State Parties of the Resolution and Convention provisions. Resolution 1373 also provides that in respect of terrorist groups not linked to Al Qaida or the Taliban, states will be responsible for compiling their own domestic lists of terrorist individuals or organisations – and consequently freezing their assets. The compilation of this domestic list has also been flagged by the FATF as an issue in Indonesia’s non- compliance with its international obligations. Outside the UN arena, FATF has had a significant impact on the introduction of CFT laws. Established in 1989 under the auspices of the OECD, FATF’s original mandate was to examine issues of combating international money laundering. However, following 9/11 it expanded its role to include CFT; since then it has issued IX Special Recommendations on Terrorist Financing (FATF 2008). As Realuyo notes, while FATF’s recommendations are non-binding, inclusion on its list of non-compliant countries may have serious consequences for a country’s ability “to do business in the international financial system and discourage investors from engaging in a country” (Realuyo 2013, p. 15). This ‘name and shame’ process has been extremely effective in bringing countries into line with international standards on both AML and CFT. Indeed, a prominent Indonesian lawmaker and politician, Eva Kusuma Sundari, criticized the Act, arguing that its introduction “was mainly triggered by the critical report of the Financial Action Task Force (FATF) on Indonesia” (Tas 2012). FATF’s IX Special Recommendations mirror the Convention, in that they direct states to ratify the Convention, criminalise acts of terrorist financing, freeze assets, report suspicious transactions and cooperate internationally. But Recommendations VI, VII, VIII and IX add detail relating to issues of alternative remittances, wire transfers, non-profit organisations and cash couriers – all areas on which the Convention remains silent.
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III. THE INDONESIAN CFT LEGISLATIVE FRAMEWORK While there has been much international academic literature de- voted to global terrorism issues, very little has focused on Indonesia’s domestic anti-terrorism legislation, and even less on its CFT laws. This is no doubt due to the fact that the comprehensive counter terrorism financing legislation was only recently enacted in March, 2013. How- ever, this is only part of the story. While it can now be said that Indone- sia’s domestic legislation is largely, if not completely, compliant with the provisions of the Convention and the FATF IX Special Recommen- dations, that was not the case beforehand. Following is a timeline of Indonesia’s evolving CFT legislative re- gime: 1. 9 December 1999 – The UN issues the International Convention for the Suppression of Terrorist Financing (the Convention) by Resolution 54/109. 2. 24 September 2001 – following 9/11 , Indonesia signs the Convention. 3. 28 September 2001 – UN Security Council Resolution 1373 is issued requiring all states to criminalise the financing of terrorism, and calling on them to ratify the Convention “as soon as possible”. 4. 18 October 2002 – following the Bali bombing of 12 October, Indonesia issues Interim Law Number 1 of 2002(PERPU Nomor 1 2002 Tentang Pemberantasan Tindak Pidana Terorisme 2002), criminalising the financing of terrorism. This interim law was ratified by Act of Parliament in March 2003 by Law No. 15 2003. (Undang-Undang Nomor 15 Tahun 2003 Tentang Penetapan PERPU Nomor 1 2002 Tentang Pemberantasan Terorisme, Menjadi Undung-Undang 2003) 5. 5 April 2006 – Indonesia ratifies the Convention with Law Number 6 of 2006 (Undang-undang Nomor 6 Tahun 2006 Tentang Pengesahan International Treaty for the Suppression of the Financing of Terrorism 1999 2006). It states that, with one reservation, the Convention forms an inseparable part of the law itself. 6. 22 October 2010 – Indonesia enacts its Anti-Money Laundering law (Undang-undang Nomor 8 Tahun 2010 Tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang 2010), creating
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PPATK and including terrorism as a predicate offence. 7. June 2012 – Indonesia is included on FATF’s “High Risk and non- Cooperative Jurisdictions” list (FATF 2012, p. 30) 8. 13 March 2013 – Indonesia enacts the Prevention and Eradication of Terrorism Financing Act (Law Number 9 of 2013 (the Act). Following the Bali bombing of October 2002, Indonesia hastily enacted the Eradication of Terrorism Act, contained in Interim Law No.1 of 2002. (Undang-Undang Nomor 15 Tahun 2003 Tentang Penetapan PERPU Nomor 1 2002 Tentang Pemberantasan Terorisme, Menjadi Undung-Undang 2003). A detailed discussion of this law, Indonesia’s general anti-terrorism legislation –first enacted using the President’s emergency powers and subsequently ratified by Parliament – is beyond the scope of this paper. However it is worth noting that the 2003 law contains one section specifically devoted tocriminalising the financing of terrorism. Article 11 states: Any person who wilfully provides or collects funds with the intention that they be used, or ought reasonably suspect that they will be used in whole or in part for the commission of a terrorist act as set out in Articles 6, 7, 8, 9 and 10 is subject to a punishment of between 3 and 15 years imprisonment. (PERPU Nomor 1 2002 Tentang Pember- antasan Tindak Pidana Terorisme 2002, p. 4 Article 11) Article 29 also empowers investigators, prosecutors and judges to order banks and other financial institutions to immediately freeze the assets/property (harta kekayaan) of any person, where it is known or suspected that they are the result (hasil) of a terrorist act and/or a crime connected with terrorism. The assets/property are ordered to remain in the bank. A penalty for non-compliance is to be provided under separate regulations. Questions about the specific detail of these sections arise, for example, why Article 11 refers to funds (dana), whereas Article 29 refers to assets/property (harta kekayaan). It is noteworthy that Article 29 does not provide for any judicial review of this power, which may be equally used by police investigators, prosecutors and judges alike. Neither the duration of the asset freezing nor an appeals process by the asset owner is stipulated. No evidence appears to exist as to whether the
374 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism asset freezing act has been judicially examined, or indeed whether the power was ever even used by authorities. In any event, by October 2002, Indonesia had complied with its international CFT obligations to the extent that it had criminalised the act of financing terrorism, and provided a mechanism by which the assets/property known or suspected to be the result of a terrorist act or a crime connected with terrorism could be blocked or ‘frozen’. (In Indonesian the term “pemblokiran” literally “blocking” is used to mean freezing. Both terms are used here interchangeably.) These two relatively brief sections, part of a hastily drafted response to a catastrophic terrorist attack, essentially formed the extent of Indonesia’s CFT regime for almost a decade. According to a PPATK representative, since 2003 there have been 15 prosecutions of terrorism funding using Article 11 (Ramadhan 2013). Among the most notable cases was the 2011 trial of radical cleric Abu Bakar Bashir who was convicted of financing a terrorist training camp in Aceh and sentenced to 15 years imprisonment (AAP 2011). Another exception is the case of Abdul Haris, who in 2011 was convicted of collecting funds for the Aceh training camp and sentenced to nine years imprisonment (Pangga- bean 2011). Most recently three people were convicted of committing internet fraud and using the funds to finance a terrorist training camp in Poso, Central Sulawesi (Ramadhan 2013). After the enactment of the 2002 anti-terrorism law, no further developments occurred in relation to CFT until 2006, when Indonesia officially ratified the Convention by Act of Parliament. However, this Act alone is not sufficient to place the Convention on an equal footing with other national legislation. A further Act was required, which did not occur until 2013. The only other CFT-related development came in 2010 with the enactment of the Anti-Money Laundering Law (Law Number 8 of 2010) (Undang-undang Nomor 8 Tahun 2010 Tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang 2010). While there are some areas of overlap between the anti-money laundering law and CFT, the two are distinctly different phenomena. Money laundering concerns the act of concealing the illicit origin of funds of crime. CFT is concerned with preventing funds of any kind, licit or illicit, from making its way into the hands of terrorists.
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Indonesia’s counter-terrorism efforts to date have focussed on enforcement – that is, capturing and prosecuting terrorist suspects. Indonesia’s special counter-terrorism police detachment, Densus 88, has garnered international praise for their bravery and success in their CT operations; having, at last count, apprehended over 700 suspects over the past decade(Post 2013). In fact, while the Indonesian police have been praised for their “extraordinary success” (Fealy 2013, p. 1) in combating terrorism – police and the government have both been criticised for having done, and achieved, much less in the area of prevention – Vice President Boediono has been quoted as saying that “there has been too much emphasis on repressive actions and not enough on preventative” (Sihaloho 2012). If that is the case for the general prevention of terrorism, then it is doubly true for the prevention of the financing of terrorism. In considering the relatively little commentary on CFT regimes, McCulloch suggests that it may be due to a perception that CFT laws ‘are relatively benign, compared to, for example, interrogation/detention regimes...It is possible that the sheer volume of national and international security measures and legislation passed post-9/11 has meant that the suppression of financing of terrorism measures have passed relatively undetected in the camouflage of the many other measures that add to the arsenal of the state’s coercive powers.’ (McCulloch 2006, p. 397) In Indonesia’s post-dictatorship era much more critical attention has been given to sections of the anti-terrorism laws which provide police with greater powers of arrest and detention, than to CFT issues. Apart from some media reporting when the Act was passed in March, 2013 there has been very little public forum discussion of CFT issues. Indeed it would appear that it has been a deliberate policy of PPATK to not draw public attention to the CFT laws, for fear of challenge in the Constitutional Court (Ramadhan 2013). One exception is a governmental report entitled “The Final Report of the Academic Team on the Draft Law for the Prevention and Eradication of Terrorism Financing” (BPHN 2012), issued in 2012 in advance of the enactment of the Act. Prepared by the Ministry of Law and Human Rights’ Centre for Planning and Legal Development in conjunction with representatives from various government agencies
376 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism including the National Police, the Indonesian Central Bank (BI) and PPATK, the 96-page Report was intended as a background paper and resource for lawmakers when considering the draft version of the Act. The Report echoes the sentiment that while much has been done by government agencies in the area of investigating and capturing terrorist suspects, less has been done in the area of prevention: The government’s efforts so far to eradicate terrorism have been satisfactory. Although, it has been limited to capturing suspects and has given less attention to elements of funding, which are a crucial element of any terrorist act...Efforts to eradicate terrorism through conventional methods (“follow the suspect”) that is, by capturing and punishing terrorists, is not sufficient for preventing and eradicating terrorism. Other efforts are required...by applying a “follow the money” approach which involves the PPATK, Financial Services Providers and law enforcement agencies to detect the flow of funds which are used or suspected of being used to fund terrorism (Husein 2012, p. 2). It goes on to explain however, in repeated references to both the Convention and FATF IX Special Recommendations that: Having ratified the International Convention for the Suppression of the Financing of Terrorism by virtue of Law Number 6 of 2006, Indonesia is therefore obliged to create or harmonise its legislation relating to terrorism financing so that it is in line with the provisions in the Convention...The existing legislation relating to terrorism financing has not yet dealt with the prevention or eradication of the crime of terrorism financing in a satisfactory or comprehensive way... ratifying a convention is not sufficient for it to become operational, this requires a further action. The Prevention and Eradication of Terrorism Financing Bill represents the effort to follow up on the ratification of the Convention...with its enactment it will form a part of Indonesia’s positive law equal to other national legislation... The need for counter terrorism financing to be dealt with in its own legislation is also triggered by the IX Special Recommendations of the FATF. These recommendations form the international standard for blocking access by terrorist groups and their supporters to the financial system (Husein 2012, p. 3). Given that the Report is firmly based on Convention and IX Special
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Recommendations principles, it is no surprise that the Act itself is very much in line with those provisions, and in many cases mirrors the provisions themselves. The Report in some ways attempts to justify Indonesia’s failure to fully implement the Convention’s provisions by arguing that the existing, minimal provisions in the then existing CFT legislation are effectively sufficient to cover its obligations. It also points out that since 2008 PPATK and the Central Bank have been publishing and implementing the UN’s consolidated list of terrorist individuals and groups to assist financial services providers in detecting and reporting suspicious transactions. It adds that from 2008 to 2010 PPATK found 128 transactions suspected of being connected to terrorism. Further, 35 suspicious financial transactions were reported to law enforcement agencies (Husein 2012, p. 20). The Report argues that “having already accommodated the obligations on State Parties as set out in the SFT Convention, the ratification or enactment of the Convention by the Indonesian government tends more towards strengthening or confirming that commitment...Nonetheless, ratifying or enacting the convention is very important in strengthening Indonesia’s anti-money laundering regime”(Husein 2012, p. 20). Whether or not this is really the case, it can now be said that Indonesia’s domestic legislation is largely, albeit not yet completely, in line with international best practices and its obligations under the Convention. Whether this legislative conformity will translate into greater detection and prevention in practice is an issue outside the scope of this paper. In light of the critical importance of the Act to Indonesia’s CFT regime, the Act’s salient features warrant attention here. Preamble The Preamble of the Act defers to the 1945 Constitution (Undang Undang Dasar Negara Republik Indonesia 1945) as the basis of the state’s duty to ensure the security and prosperity of the people. It states that in implementing and participating in a world order based on independence, peace and social justice’ the state must take firm action against any threats which disrupt the security of the people or the sovereignty of the state, including terrorism and any activities which
378 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism support terrorism. Paragraph (b) states that financing is an essential element of terrorist acts and therefore any efforts to combat it must include the prevention of the financing of terrorism. Paragraph (c) refers to Indonesia’s ratification of the Convention, and that Indonesia is therefore obliged to harmonise its domestic legislation with the provisions as set out in the Convention. The fact that Indonesia has ratified the Convention and here, expressly acknowledges the requirement to enact the provisions in its national legislation effectively deals with the first FATF recommendation that “each country take immediate steps to ratify and implement fully the 1999 UN Convention for the Suppression of Terrorist Financing” as well as the UN resolutions, particularly Resolution 1373. Paragraph (d) acknowledges that the legislation dealing with CFT has not yet dealt with the prevention and eradication of terrorism financing satisfactorily and comprehensively. Chapter I – Definitions Terrorism financing is defined in Article (1)(1) in terms similar to the Convention as “any act of providing, collecting, giving or loan- ing funds, whether directly or indirectly, with the intention that they be used, or in the knowledge that they will be used, for a terrorist act, a terrorist organisation or a terrorist individual.” Convention Article 2(1) makes no reference to “loaning” of funds, hence this definition is wider and would catch that circumstance if it were ever to be raised as a de- fence. The Indonesian definition has dropped the phrasing “in full or in part”. It is not made clear why this was done, and effectively leaves the door open to a defence along the lines of “only a small percentage of the funds we collected were used for terrorism.” For the sake of complete- ness it would be preferable for “loaning” to be inserted. It should also be noted here that as discussed above, pursuant to Resolution 1373, each country has been tasked with compiling its own list of terrorist individuals and organisations, and the Act contains pro- visions to that effect. Paragraph (2) of the Act defines a “terrorist act” by reference to the general anti-terrorism legislation. Law No.15 2003 Article 6 creates the crime of terrorism and effectively defines a terrorist act as being when:
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“any person intentionally uses violence or the threat of violence to cre- ate a widespread atmosphere of terror or fear or which causes mass casualties by taking the liberty or lives and property of any person, or which causes damage or destruction to vital strategic objects or the environment or public facilities or international facilities.” By comparison, as discussed above, the Convention’s definition of a terrorist act is two-part, and refers to (a) any acts contained in the 12 terrorism conventions and (b) any act intended to cause death or serious injury to a civilian where the purpose is to intimidate a population or to compel a government or other organisation to do or abstain from doing any act. While the wording of the Indonesian definition is unusual by its ref- erence to the creation of mass casualties through the taking of liberty, lives and property, its references to damage and destruction of property, strategic vital facilities, and the environment arguably make it far wider than that in the Convention. Whereas the Convention requires an act intended to cause death or serious injury, the Act requires, taken at its most minimal interpretation, merely an act which causes a widespread atmosphere of fear by intending or threatening to cause damage to the environment or some public facility. As Butt argues: Critical terms such as ‘widespread atmosphere of terror or fear’, ‘mass casualties’ and ‘very high’ are not defined. This leaves them open to subjective interpretation and raises many questions about how these provisions could be applied...Would terror or fear instilled in most inhabitants of one village suffice, or must the terror spread through a sub-district, province or, indeed, the whole of Indonesia? How is the terror/fear to be proven? Must a poll be taken or witnesses called; or would judges accept that fear had in fact occurred based on their own perceptions? (Butt 2008, p. 4) The author is not aware of any cases where this has been raised as an issue of contention; a definitive answer would require a detailed examination of the available judgments in terrorism cases. The question however is a real one, and could arguably be raised as a defence. As noted by Jones in relation to many recent cases of shootings of police officers “It used to be that jihadis saw the creation of fear as a very specific objective...The aim now is much more instrumental. It’s about
380 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism getting weapons, taking revenge, and giving militants something to do... The main aim of killing police is certainly not to create fear.” (Jones 2013, p. 1) Yet these shootings of police officers (five in August and September 2013) continue to be labelled terrorist acts, due to alleged connections to terrorist groups (Gatra 2013). Paragraph (3) expressly defines “persons” to include corporations and (4) defines corporations as including “a collection of people and/ or assets whether legal entities or non-legal entities”. This definition of a terrorist group or organisation is an improvement on the definition in Interim Law No.1 of 2002 – which doesn’t refer to “groups of people” only legal or non-legal bodies. Arguably this wider definition of a “corporation” is wide enough to capture clandestine terrorist groups and networks. However, in terms of listing Indonesian terrorist groups, while there are a great number of different groups with different names, there is also a high level of permeability between the groups, in respect of assisting or harbouring other group members, exchanging information, strategies, funds and skills. This ‘blurring of the lines’ between terrorist groups potentially creates a hurdle for police who are responsible for maintaining the list of terrorist organisations. Paragraph (6) defines a “suspicious transaction related to terrorism financing” in two parts, namely, (a) a financial transaction where there is an intention to be used and/or where it is known that it will be used for terrorist acts; or (b) transactions involving any person on the list of suspected terrorists or terrorist organisations. The definition of “suspicious transaction” will be of essential importance to those in the financial services industry, for it is such transactions that employees are required to report within three days of becoming aware of them. In the absence of an admission or incriminating statement from a customer, it is difficult to imagine how a bank employee could establish that a transaction was intended or known to be used for terrorism. In the absence of such an admission therefore it would arguably be very difficult to prove that a financial services provider6 had failed to report
6 The explanatory notes to the Act list a number of examples of Financial Services Providers (FSPs) including, among others: banks, financial institutions, insurance companies and insurance brokers, pension funds, securities companies, investment managers, custodians, trustees, postal service providers, foreign exchange traders, credit card companies, e-money or e-wallet providers, savings and loans societies or
Volume 11 Number 3 April 2014 381 Jurnal Hukum Internasional a suspicious transaction on this basis. A more likely situation is failure by the provider employee to check a current list for a listed individual or organisation, and the transaction has proceeded. Considering the enormous volume of daily transactions, it is conceivable, indeed probably inevitable that an inestimably large number of transactions will proceed without being checked in this manner. It is here that criticisms of CFT as being akin to trying to “find a needle in a haystack” come to the fore. Barrett for example speaks of the “the near impossibility of achieving full compliance with all nine Special Recommendations, let alone of assuring effective implementation.” (Barrett 2012) He also warns that where a perception of disproportionality seeps in between the burden of implementing the laws and the benefits of doing so, those implementing them will become less rigorous and those complying less caring. This will undoubtedly be an issue faced by both financial service providers obligated to implement the CFT checks and PPATK tasked with enforcing them. Paragraph (9) defines the Financial Transactions Analysis and Reporting Centre (PPATK) as that referred to and created by the Anti- money Laundering Act. Under Paragraph (10) a Financial Services Provider (FSP) is any person providing services in the field of finance or related services whether formal or informal. According to Ramadhan this definition would include designated non-financial businesses and professions (DNFBPs), such as lawyers, which offer any kind of financial service. A lawyer who offers only advocacy services, on the other hand, would not be included. (Ramadhan 2013) A Supervisory and Regulatory Agency (LPP) is one responsible for supervision, regulation and sanction of Financial Services Providers. The relationship between LPPs and the PPATK is expanded on further in the Act. In practice, there are two LPPs – for banks, the relevant LPP is Bank Indonesia; Indonesia’s central bank. For non-banks, the cooperatives, any companies operating in commodities trading, or money transfer ser- vices. The Act makes no mention of non-financial businesses and professions such as lawyers. According to Syahril Ramadhan this definition is wide enough to cover any professions, including lawyers, which offer any kind of financial services (Ramadhan 2013).
382 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism relevant LPP is the Financial Services Authority (OJK). Whereas the PPATK can recommend sanctions against FSPs, it is the relevant LPP which will actually make a final determination on the execution of sanctions against FSPs (Ramadhan 2013).
Chapter II – Scope Chapter II details the extraterritoriality provisions in the Conven- tion, that is, that the Act may apply within the territory of the Indonesia or outside Indonesia in certain cases where there is a nexus with Indo- nesia. External acts listed include those committed outside Indonesia by an Indonesian national, or acts committed against the Indonesian government or Indonesian flagged vessels or aircraft.
Chapter III – the crime of terrorism financing Article 4 criminalises terrorism financing, providing for a maximum penalty of 15 years imprisonment and a maximum fine of Rp1 billion. Article 5 criminalises attempts, conspiracies, or aiding terrorism financ- ing with the same penalties as Article 4. Article 6 states “any person who wilfully plans, organises or incites/ encourages (menggerakkan) others to commit the offence set out in Ar- ticle 4 commits the offence of terrorism financing with a penalty of life imprisonment or a maximum penalty of 20 years imprisonment. This section is interesting - firstly it provides two seemingly contradictory penalties, i.e. life imprisonment or a maximum of 20 years. Secondly the penalty here for planning, organising or inciting is harsher than the penalty in Article 4, and arguably far wider in scope. It is conceivable that the section applies to fiery speeches by Islamist clerics (taklim) which include a call to make donations to jihadist groups. Clearly where the group was listed this would constitute a crime. Where it is known or ought to be known that the funds would be used for a terrorist act, this would also constitute a crime under Article 6 and expose the speaker to a maximum penalty of life imprisonment. The penalty’s harshness presumably reflects the gravity of the offence for those in positions of authority, such as clerics or teachers, to abuse their position by encour-
Volume 11 Number 3 April 2014 383 Jurnal Hukum Internasional aging others to commit the crime of funding terrorism.
Chapter IV – Other crimes related to terrorist financing Chapter IV stipulates the potential criminal liabilities of those work- ing within the terrorism financing regime and financial services provid- ers. Article 9 (the ‘anti-tipping off’ article) provides that any officer or employee of PPATK, investigating or prosecuting agencies, judges, or any person receiving documents or information relating to a suspicious transaction in the course of their duty is obligated to treat that informa- tion as secret. Leaking of any such document or information attracts a maximum penalty of four years imprisonment. Given the level of cor- ruption within Indonesia’s criminal justice system, the maximum pen- alty of four years imprisonment would seem a reasonable deterrent to the leaking of such sensitive information. Article 10 forbids directors, commissioners, managers or staff of a financial services provider or the regulatory agencies from provid- ing information regarding a suspicious transaction to any customer and provides a maximum penalty of 5 years imprisonment and Rp1 billion fine. The penalty here is higher as it specifies the giving of information to the customer (or any other person). Given the seriousness of the po- tential consequences of leaking such information to a terrorist organisa- tion it may be asked whether the penalty should not be even higher.
Chapter V – Prevention Chapter V sets out provisions relating to prevention of CFT, with Article 11 setting out four mechanisms by which prevention may be achieved. They are: (a) application of the principle of ‘know your cus- tomer’ (b) adherence to monitoring and reporting by FSPs (c) monitor- ing of money transfer systems and (d) monitoring the movement of cash in and out of Indonesia. Article 13 on “Reporting” is one which would perhaps cause most concern for those working in the financial services industry and re- quires any provider to report any financial transaction suspected of be- ing connected to the financing of terrorism within three days of becom-
384 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism ing aware of the transaction. Subsection (2) however softens the impact of the preceding section by stating that where a provider “intentionally” contravenes the section it may incur an administrative fine of up to Rp1 billion rupiah. This fine is to be administered by the LPP. Articles 14-17 outline the legal framework for the monitoring and compliance with the reporting requirements. Monitoring and compli- ance is to be carried out by LPPs in cooperation with PPATK. Where an LPP discovers a suspicious transaction that has not been reported to PPATK, the LPP must immediately report this discovery to PPATK. Reports of suspicious transactions to PPATK are specifically ex- empted from confidentiality provisions which providers are usually bound by. And except in cases of abuses of process provider staff will not be liable for any criminal or civil action in carrying out their duties in accordance with Act. Articles 18, 19 and 20 set out the conditions for money transfers, including requirements for full details to be obtained with regard to both the sender and receiver of funds. Without those the transfer must be rejected. providers are also required to store details from all money transfers for at least five years from the date of the transfer. In the event of non-compliance providers will be liable to a sanction to be set out in further regulations, which are yet to be issued.
Chapter VI – Blocking (Freezing) Chapter VI stipulates the regime by which PPATK, investigators, prosecutors or judges may request or order a provider to block or freeze assets where it is known, or ought to be known that the funds will be used for terrorism. It should be noted that the regime provided in Chapter VI is significantly different from that set out in article 29 of interim law No. 1 of 2002. The main difference is that this new regime provides for judicial oversight of the power to block or freeze assets or funds. The regime set out here expressly supersedes and repeals the provisions of article 29 of the ATL. Article 22 sets out that a freeze may be executed where it is known or
Volume 11 Number 3 April 2014 385 Jurnal Hukum Internasional suspected7 that funds will be used for terrorism. Articles 23 through 26 then go on to set out the procedure by which a freeze may be requested, executed and objected to. Under article 23(1) a request for a freeze on funds may originate from the PPATK, an investigator, a prosecutor, or a judge – and must be set out in writing in a letter of request to the FSP. This is expressly “an administrative request” and it must set out the name and position of the person requesting the freeze, the identity of the corporation or person whose funds are being blocked, the reasons for the request and the location of the funds. Article 23(2) sets out a parallel mechanism by which a court order may be sought from the Central Jakarta District Court – but does not provide further details.8 In either case, article 23(5) requires FSPs to execute a block immediately after receiving a letter of request or an order – the block then remains in force for 30 days – and the FSP must provide a notice of compliance with the block to the requesting agency, and the party whose funds have been blocked, within one day. The blocked funds must remain with the FSP. After 30 days the FSP is then required to terminate the block on the funds. This would appear to contradict FATF Best Practices which require a block of “indeterminate duration” (FATF 2013b, p. 6). Articles 24 to 26 set out a procedure for objecting against a block by the holder of the funds. This may be done by lodging a notice of objection within 14 days with PPATK, investigator, prosecutor or judge, i.e. the party which requested the block. The notice must include the reasons for the objection and be accompanied by any relevant documentary evidence which may explain the legitimate origin of the funds. In the event of a notice of objection the requesting agency must either revoke the block or reject the notice of objection. Where it is rejected, article 25(6) advises that the blocked party may bring a civil action in court. It appears unclear how the two mechanisms of an administrative request and a court order work together. In what circumstances should a requesting agency seek a court order and when
7 The explanatory note to this section sets out that the standard of proof in this instance is that of bukti permulaan yang cukup, sufficient preliminary or ‘prima facie evidence’. 8 This “dual” mechanism of administrative and judicial proceedings accord with the process outlined in the FATF best practices document (FATF 2013b, p. 5)
386 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism would it use an administrative request? Secondly, it seems potentially inequitable that an objection to a block on funds should be made to the same agency which sought the block.
Chapter VII – List of suspected terrorists and terrorist organisations issued by government Chapter VII, articles 27 to 35, outlines the procedure for issuing a list of terrorist organisations, the blocking of funds of listed persons or organisations, and a procedure for objecting. In brief, the Chief of the Indonesian Police shall submit an application to the Central Jakar- ta District Court of suspected terrorist individuals and organisations. Identities and reasons must be included as well as any documentary evidence or recommendations from relevant government departments or ministries9. The Court must then make a determination on the ap- plication within 30 days. Where the court grants the request, the name of the person or organisation is included on the list, and the person or organisation must be notified within 10 days. The list is maintained by the Chief of Police. As at September 2013, such a list had yet to be issued – forming one of FATF’s main concerns about Indonesia’s non- compliance. The list is then forwarded, via the LPPs’ to all financial services pro- viders who are required to block all funds belonging to those persons or groups. The blocked parties may object providing reasons and docu- ments to the Chief of Police. The Chief of Police must then determine whether to remove the person from the list, or reject the application; in which case the party may bring an action in the Central Jakarta District Court.
Remaining Chapters Chapter VIII sets out a procedure for law enforcement agencies to request information relating to funds from FSPs. Chapter IX relates
9 The explanatory note for article 27 mentions agencies such as the National Counter Terrorism Agency, Ministry of Foreign Affairs, and the National Intelligence Agency.
Volume 11 Number 3 April 2014 387 Jurnal Hukum Internasional to international cooperation including requests from foreign agencies for freezing of funds of terrorist organisations within Indonesia. Under Chapter IX a request for the freezing of assets of a person originates from an overseas jurisdiction and is forwarded to the Foreign Affairs Ministry. This request is then forwarded to the Chief of Police, and on to the Central Jakarta District Court in a process similar to that con- tained in Chapter VI. Chapters X and XI are administrative covering transitional arrangements and repealing previous legislation.
IV. Criticisms of Indonesia’s CFT regime In evaluating Indonesia’s CFT legislative regime, it can be argued that Indonesia has fulfilled its obligations under the Convention. All of the major requirements of the Convention are met, namely funding of terrorism is criminalised with serious penalties; a regime exists for the designation of terrorist groups and the freezing of their assets; laws exist requiring FSPs to apply “know your customer” principles and to report suspicious transactions; procedures exist for extradition and international cooperation in CFT – and so on. However, according to FATF, Indonesia has not gone far enough (Posthouwer 2008, p. 161). And while these recommendations are not binding on countries, being on the FATF’s list of high-risk and non- compliant jurisdictions can provide a powerful incentive to act. In a statement posted on 21 June 2013, FATF stated: Indonesia has taken steps towards improving its AML/CFT regime, including by adequately criminalising terrorist financing through the CFT law enacted in February 2013. However, despite Indone- sia’s high-level political commitment to work with the FATF and APG to address its strategic AML/CFT deficiencies, Indonesia has not made sufficient progress in implementing its action plan within the agreed timelines, and certain strategic AML/CFT deficiencies remain regarding the establishment and implementation of an ad- equate legal framework and procedures for identifying and freezing of terrorist assets. The FATF encourages Indonesia to address these remaining issues, in compliance with international standards.
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It is clear that significant progress has been made by Indonesia, driven by high-level political commitment; however more work needs to be done in the area of implementation. PPATK representative Syahril Ramadhan confirmed these comments saying that the FATF’s concerns could be divided into three areas: Indonesia’s failure to create a domestic list of terrorism financers; freezing assets of individuals on the Resolution 1267 list “without delay”; and the evidentiary standards applied by Indonesian courts when determining whether to include a person on the domestic list (Ra- madhan 2013). Whereas the legal framework for the creation of a list of suspect- ed terrorist financers now exists, pursuant to Chapter VI of the Act, in practice, this list has not yet been compiled or issued by the Indonesian Chief of Police. However this is merely a question of time and imple- mentation. The PPATK is currently in discussions with the police’s spe- cial counter terrorism unit, Densus 88, and it appears that a domestic list will be issued within a matter of months (Ramadhan 2013). In the opinion of Mr Ramadhan, the issuance of that list, which will merge both a domestic list and the Resolution 1267 list, will be sufficient for Indonesia to be removed from the FATF’s list of high risk and non- cooperative jurisdictions. Notwithstanding the creation of such a list, FATF has flagged two further issues related to Indonesia’s judicial oversight menchanism. First, that the freezing of assets of individuals on the 1267 list must be conducted “without delay” and the judicial oversight mechanism provides a lag time of up to 30 days during which a court considers whether to list the person or not. Second, FATF has requested further information regarding the evidentiary standards used by Indonesian courts in making such a determination (Ramadhan 2013). In relation to the second issue, FATF’s International Best Practices document, explains that in making determinations of whether individuals should be listed “the competent authority of each jurisdiction will apply the legal standards of its own legal system regarding the kind and quantum of evidence...to enhance and expedite cooperation...all countries are encouraged to share information on how the legal standard is applied... with examples.” (FATF 2013b, p. 6) Given the relative newness of In-
Volume 11 Number 3 April 2014 389 Jurnal Hukum Internasional donesia’s CFT legislation there are currently no decided cases for In- donesian authorities to share with other jurisidictions. However, as at the time of writing, the first case to seek a designation using the new legislation is before the courts and will be decided within a matter of weeks. (Ramadhan 2013) Indonesian CFT authorities would be advised therefore to take note of the court’s decision and the evidence present- ed, and share this information, with their international counterparts; in line with FATF’s guidance. Regarding the delays inherent in Indonesia’s judicial oversight mechanism it would appear that there are two competing policy objec- tives at stake – on one hand is the expedient freezing of assets of sus- pected terrorist financers before they are able to be withdrawn or moved – on the other are notions of due process and fairness. 10 Indeed, FATF’s International Best Practices document which is intended to “assist countries in developing and implementing” financial sanctions regimes refers to both of these competing policy objectives. It stresses that “efforts to combat terrorist financing are greatly undermined if countries do not freeze the funds or other assets of designated persons and entities quickly and effectively”. (FATF 2013b, p. 4) However, it also emphasises the importance of following established legal guidelines, the rule of law and due process. Yunus Husein, Chairman of the committee which authored the draft CFT Bill Report, and former head of PPATK, criticised the Act for that reason. In discussing the mechanism contained in Articles 27 and 28 he pointed out that it would be possible for funds to be moved while this process proceeds. (Hukumonline 2013) One alternative, as adopted in Malaysia for example, is that the funds of anyone on the 1267 list, are automatically frozen (Ramadhan 2013). However, this would require an amendment to the Act, and that is unlikely to happen within the life of the current parliament, given Indonesia has an election in early 2014. While it might seem easy to dismiss concerns related to the 1267 list, due to the decreasing relevance of Al Qaida in the years since 9/11, Ramadhan has pointed out that in the last month alone, the United States
10 Further details on the application of Special recommendation 6 can be found in the FATF Special Report on International Best Practices Targeted Financial Sanctions Related to Terrorism and Terrorist Financing (Recommendation 6) (FATF 2013b)
390 Volume 11 Number 3 April 2014 Forbidden funds – Indonesia’s new legislation for countering the financing of terrorism has added two Indonesian nationals to the list. Therefore, the list and concerns relating to its implementation continue to be regarded as being of high importance to FATF, the UN and the United States in particular. Another criticism of Indonesia’s ability to implement an effective CFT regime focuses on the high numbers and ease of obtaining false identification documents (KTPs or Kartu Tanda Penduduk) which allow terrorists (and other criminals) to travel, seek accommodation, open bank accounts etc using a false identity. As outlined in FATF’s Best Practices document “for the effective implementation of an asset freeze, robust identifying information is essential” (FATF 2013b, p. 6) This factor, combined with the common practice of individuals to use only one name, could potentially lead to significant issues in providing a positive identity match for a suspected terrorism financer (Nugrah- anto 2010). However this is obviously an issue outside the control of PPATK. A reading of Posthouwer’s analysis of the Australian legislative regime (Posthouwer 2008) indicates a level of nuanced detail in the various regulations and procedures which is not yet present within the Indonesian system. For example, AUSTRAC, Australia’s equivalent of PPATK, has issued detailed supplementary rules and regulations governing the fine details of implementation of “know your customer” procedures. However, further regulations will no doubt be forthcoming from PPATK to govern the kind of procedural details which are present in other jurisdictions. PPATK needs to work closely with FATF to further develop the detailed regulations and rules required to bring Indonesia into line with FATF’s requirements and to be removed from the list of non-compliant countries. These regulations would then require a concerted whole-of- government approach in their application with the full commitment of the private financial services sector to implement the principles of KYC and suspicious transaction reporting. Only then will Indonesia have any chance of being removed from FATF’s list of high-risk countries.
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V. CONCLUSION With the enactment, in March 2013, of its Eradication and Pre- vention of Terrorism Financing Act, Indonesia has finally brought its domestic legislation into line with its commitments under the Interna- tional Convention for the Suppression of Terrorist Financing – 12 years after signing the Convention. However, having been criticised by FATF for failing to implement the new laws in line with the agreed timeline, Indonesia remains on FATF’s list of high-risk and non-cooperative jurisdictions. It may be argued that the 2003 law and this latest initiative merely pay lip-service to Indonesia’s international commitments in respect of combating the financing of terrorism, and that the latest initiative was enacted only in response to Indonesia’s inclusion on FATF’s ‘name and shame’ list. On the other hand, it may be said that Indonesia has achieved more than most in the area of general counter terrorism operations, and while the enactment and implementation of its CFT legislation may have lagged somewhat, the political will exists, and it is simply a matter of time and regulatory detail before the legislation is fully implemented by both public and private institutions. A truly effective application of the CFT statutory regime will re- quire accompanying implementing regulations, which have yet to be issued. The regulations will require much greater detail in respect of the implementation and infrastructural regime, particularly concerning the monitoring and application of compliance and sanctions by PPATK and the sustained and coordinated efforts of both government agencies and the financial services sector. These are all outcome objectives which are achievable given the continuing goodwill and cooperation of the financial services sector. While it may appear unlikely to be realised in the near future, with the enactment of its CFT legislation, a functioning counter-terrorist financing regime, capable of satisfying FATF, is now within Indonesia’s grasp.
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REFERENCES Journal articles Barrett, R. “Preventing the Financing of Terrorism”, Case Western Reserve Journal of International Law, Vol. 44 No. 719, pp. 719-36., 2012. Butt, S, Anti-Terrorism Law and Criminal Process in Indonesia, Asian Law Centre, University of Melbourne, 2008. McCulloch, BCJ. “Preempting Justice: Suppression of Financing of Terrorism and the ‘War on Terror’”, Current Issues in Criminal Justice, Vol. 17 No. 3, pp. 397-412, 2006. McGarrity, N. “The Criminalisation of Terrorist Financing in Australia’, Monash Uni- versity Law Review, Vol. 38, No.3 pp. 55-86, 2013. Posthouwer, M. “Australia’s Enhanced Anti-money Laundering and Counter-terror- ism Financing Regime: New Compliance Challenges for the Financial Services Industry”, Law in Context, Vol. 25, No. 2, 2008, pp. 160-77.
Internet References AAP 2011, “Australia welcomes Bashir verdict”, News.com.au, available at:
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Jones, S. “Papuan ‘separatists’ vs Jihadi ‘terrorists’: Indonesian policy dilemmas”, available at:
Legislations UN 1970, Declaration on Principles of International Law concerning Friendly Rela- tions and Co-operation among States in accordance with the Charter of the United Nations,
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[...], UN Resolution 49/60. Measures to eliminate international terrorism, Geneva, 1994. [...], General Assembly Resolution 51/210 Measures to Eliminate International Ter- rorism, UN, available at:
Others Fealy, G. Transcript of interview with Professor Greg Fealy Head, Department of Political and Social Change School of International, Political and Strategic Stud- ies College of Asia and the Pacific Australian National University, 3 May 2013. Husein, Y. Naskah Akademik RUU Pemberantasan Pendanaan Terorisme, Badan Pembinaan Hukum Nasional Kementrian Hukum dan HAM RI, 2012. Ramadhan, S. “Transcript of interview with Syahril Ramadhan Directorate of Com- pliance and Supervision Indonesian Financial Transaction Reports and Analysis Centre”, 16 September 2013. rivind%20Al-Quaida.pdf>, 1999b.
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ASEAN Human Rights Declaration: A New Form of Universalism*
Rachminawati**
Abstract
Just recently ASEAN has adopted The ASEAN Human Rights Declaration. This declaration is a corner stone for ASEAN to establish human rights law instruments and mechanism in the future in order to support the upcoming ASEAN Community in 2015. However there are a lot of critiques upon the Declaration mostly come from human rights activist and NGOs. It is criticized that the declaration’s principles and articles could erode universality of human rights as stated in the Universal Declaration of Human Rights. Highly criticized is to article 7 of the Declaration which mention that the realization of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds. It argues that this article will use as a tool for state to limit the people rights. Contrary to mainstream critiques, the paper argues that the declaration did not contain any principles that erode the universality of human rights and fundamental freedom. Article 7 of the declaration is a limitation of rights pursuant to the international human rights law called Margin of Appreciation. The margin of appreciation doctrine allows the court to take into effect the fact that the Convention will be interpreted differently in different member states. Judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question.
Keywords: Asean Human Rights Declaration, Margin of Appreciation
I. INTRODUCTION Human rights are the rights of all human beings1 simply because it is based on the dignity of human nature endowed by reason and con- science inherent in human beings.2 Life change to date of local realities towards national and even international, it appears that human rights have evolved in parallel in a complementary relationship.3
* This article was submitted to the 2013 IJIL Scientific Writing Competition, and has been awarded as the 1st Winner. ** Rachminawati, lecturer and researcher at International Law Department, Faculty of Law, Universitas Padjadjaran, Bandung, Indonesia. MA (the University of Ports- mouth United Kingdom). 1 Smith et al. (eds), Hukum Hak Asasi Manusia, (Yogyakarta: Pusat Studi Hak Asasi Manusia Islam Indonesia, 2008) at 7. 2 Universal Declaration of Human Rights 1948. 3 Suryono, ‘Implementasi Dan Sinkronisasi Hak Asasi Manusia Internasional Dan Nasional’, in Muladi, Hak Asasi Manusia Hakekat, Konsep Dan Implikasinya Dalam Perspektif Hukum Dan Masyarakat, (Bandung: Refika Aditama, 2009) at 86.
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Human rights are believed to have a universal value with no bound- aries of space and time.4 Presently, contemporary doctrine of human rights is seen through the concept of universalism with the belief in the existence of universal moral code inherent in all humanity.5 Recognizing human rights as universal principles and values that cannot be divided and cannot be revoked or derogated were then trans- formed into national laws to protect and implement those universal val- ues in different ways and approaches.6 Promotion and protection of human rights for all people around the world is an intricate matter considering the diversity of the nations that contribute to differences in conceptual formulation of human rights.7 This fact shows the paradox in that the values of human rights are uni- versal in principles yet peculiar in their application. The various applica- tions are related to the characteristics and specific nature in each country, and it is a fact that the countries in the world have nothing in common.8 The existence of the UDHR recognized as a high commitment of nations that human rights conceptualization should certainly be seen as a long history of human rights ever since the declaration of the Magna Charta 1215, followed by the petition of rights 1628 in the UK, the U.S. Declaration of Independence in 1776, and the Declaration of the Rights of Man and Citizen 1789 by France. The history of human rights shows that there is a very sharp philosophical difference both in terms of value and orientation, inter alia, the insistence on limiting the king in the United Kingdom; the priority to individual freedom in the United States; prioritizing egalitarianism and equality before the law in France; and the permissibility of non-recognition of individual rights but social and collective rights in Russia.9
4 Juwana, ‘Pemberdayaan Budaya Hukum Dalam Perlindungan Hak Asasi Manusia di Indonesia; Hak Asasi Manusia Dalam Perspektif Sistem Hukum Internasional’, in Hak Asasi Manusia : Hakikat, Konsep, Dan Implikasinya Dalam Perspektif Hukum Dan Masyarakat, (Bandung: Refika Aditama, 2009) at 70 5 Smith et al. (eds), supra n 2 at 17. 6 Juwana, supra n 5. 7 Mauna, Hukum Internasional, Pengertian Peranan Dan Fungsi Dalam Era Din- amika Global, (Bandung: Alumni, 2011) at 692. 8 Juwana, supra n 5. 9 El Muhtaj, Dimensi-Dimensi HAM – Mengurai Hak Ekonomi, Sosial, dan Budaya,
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Complexity of countries and diverse perspectives of nation states on human rights issues affect the procedure of implementation;10 further- more, human rights conception is influenced by the attitude and think- ing, hence the concept of particularity of human rights existed. Despite the support, the controversies remain. In one hand, the establishment of the ASEAN Declaration of Human Rights (hereinafter ADHR) shows the improved recognition of human rights in ASEAN countries, yet in another hand, it comes highly with critiques mentioned above. It leads us to the question: can the state- ments in the ADHR be called as a particularity of human rights and therefore abrogating the universality of it? The question above shows what this article would expound—that there is a fight between universality and particularity of human rights. Is it really an appropriate condition to debate about them? How do we define the fight with that concept? What is universality of human rights and what is particularity of human rights? Is there any other concept to bring the harmony and peace to the conflicting both? The answers of those questions will depend on whether the AHRD contains Asian Values–particularity which opposes the universality of human rights. In this essay, I attempt to defend the view that what is stated in the declaration as well as any other article claiming ASEAN values is not against the universality of human rights, nor is it a form of particularity thus not in compliance with the international human rights standards. It is my opinion that it is a kind of attempt to negotiate the universality and particularity of human rights, a new form of universality just like margin of appreciation in the European regime. To that end, this paper has been divided into three parts. The first part deals with the myth and reality of universalism of human rights whereas the second part will come to learning outcome, that is, an analysis on AHRD as a new form of universalism, and the last part is conclusion.
(Jakarta: Rajawali Pers, 2008) at 8-10. 10 El Muhtaj, supra n 10 at 89.
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II. UNIVERSALISM OF HUMAN RIGHTS: MYTH AND REALITY Universal means applying the same to everyone everywhere; there is no room for the exception or derogation based on nations, race, culture, religion and gender. What can we identify as universal in the aforementioned sense? Is it applicable in the sense of human rights? What kind of human rights in that sense? Is it civil and political rights? What specifically of those civil and political rights that is universal? It is a never-ending question-and-answer as long as human exists. It is argued that the absolute universal value of human rights is something that does not exist—it is a myth; nevertheless, it is true that relatively universal value of human rights is a reality,11 as it is attached to human created by God for a purpose that God has planned. It can be concluded that the universal principle of human rights is absolute, but the implementation of human rights is relative. According to those introductory questions above, this part will criti- cally discuss the work of Prosser with his work titled “Universal Hu- man Rights as Universal Values”. Despite the fact that many scholars have discussed the issue from many points of view, I will only focus on his perspective since he is the strongest advocator to the universalism [absolute] of human rights. Indeed, I will also include other scholars to add the value of the discussion. To limit the discussion, I will mainly focus on UDHR. At the beginning of his paper, Prosser quoted from Thomas Jeffer- son, Jean Jacques Rousseau and from the text of French Revolution that life, liberty, happiness, private property, the Rights of Man and of The Citizen, equality, freedom, fraternity, popular sovereignty, religious tol- erance and the separation of powers were perceived then as universal. From the beginning, he stood for the universality of human rights where he gave the definition of universal rights as those rights which are inher- ent in our very nature and without which we cannot live as full and free human beings.12
11 The writer lend the term relatively universal from Donnaly 12 Prosser, (forthcoming) ‘Universal Human Rights as Universal Values’, in Kulch and Prosser (eds)(forthcoming), Values at the Theoretical Crossroads of Culture. Intercultural Research, Vol 4.(Shanghai: Shanghai Foreign Language Eduation Press) at 3.
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There’s nothing actually misleading with the definition given by Prosser that is similar with the definition given by Donnaly that human rights are indeed “universal” rights in the sense that they are held “uni- versally” by all human beings. Conceptual universality is in effect just another way of saying that human rights are, by definition, equal and inalienable.13 I personally agree that the rights to life, liberty, happiness, freedom, religious tolerance and other rights are universal and should be applied without any exception; however, its enforceability in practice will be very dependent on social, cultural, and political economy of a country. There are inconsistencies in the beginning of the discussion; Prosser stated that, “…the broad spectrum of universal human rights, often more accepted in principle than in concrete cultural and national actions, es- pecially with the contrasting views of Universalism and particularism.” It is an expression of skepticism towards the implementation of univer- sal values, which according to him, should be universally accepted. There is an interesting issue before further discussion on the views of the UDHR. It is a Prosser’s view on the United Nations with the United Nations Charter as the constituent instrument. Prosser noted that, “Among the universal values/rights enshrined in the UN Charter they include dignity and worth of the human person, equal rights of men and women, justice, respect for obligations arising from treaties and inter- national law, social progress, tolerance, peace, freedom and economic and social advancement of all peoples which are all explicitly identi- fied as universal human rights and values. Although ancient Western views of justice were articulated quite early, human rights and social justice were considered fundamental in establishing dignity and equal rights of all humans in the UN Charter” I would support his argument that the charter indeed enshrined uni- versal rights but what should be highlighted is that the charter did not ask for the diversity in the implementation of the rights enshrined in the treaties and international law. Moreover, it was an agreement to achieve common goal which was international peace and security. The dignity
13 Donnaly, The Relative Universality of Human Rights (Revised) (working paper no. 33, University of Denver, 2006) at 2.
400 Volume 11 Number 3 April 2014 ASEAN Human Rights Declaration of human person, tolerance and freedom are fundamental principles to achieve the peace and security in the world. How and in what way each nation state implements the respect for human dignity and freedom and building tolerance are rooms for state to rule and govern pursuant to the needs and culture of society. Therefore there will be no single concept for respecting human rights in that sense, it will indeed transform fol- lowing the society. If we compare to how we conclude international customary as a source of international law, there are at least contains two elements to be recognized as law. First is material factor, and second is psycho- logical factor. Material factor is the actual practice indulged in by states constitutes the initial factor. There are numbers of point to be consid- ered concerning its nature including the duration, consistency, repeti- tion and generality of a particular practice by states. Second factor is opinio juris sive necessitatis. This is the psychological factor, a belief by state that behaved in a certain way that it was under a legal obliga- tion to act that way. What we can learn from the process above is human rights as stated in the UN Charter need a process to be universally recognized both in theory and implementation. It cannot be forced to be applied in all states to all people at the same time. Moreover, as opinio juris sive necessita- tis, human rights need to be proved in more legal and formal way. Moving forward to UDHR, Donnaly concluded that basically the UDHR consists of five types of international human rights. Accord- ingly, UDHR is a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms. UDHR did not rule the specific rights commonly debated rights such as the freedom of religion, gay and lesbian rights.14 UDHR only shows the general and basic rights and principle. The efficacy of the rights and principle lies in member nations states pursuant to their socio, eco- nomic and cultural background. I put away the political condition of the
14 Sen, Human Rights and Asean Values (170 East 64th Street, New York NY: Carn- egie Council on Ethics and International Affairs, 1997).
Volume 11 Number 3 April 2014 401 Jurnal Hukum Internasional state because politics often used human rights as their tool to achieve their own goals and interest. It is a matter of how the court plays a role to assess whether there is political interest or not when a nation limits their citizen rights. The debate over universalism and particularism has actually been done since the signing of the Vienna Convention of 1993, which put regional minimum standards. The validity of the universalism of hu- man rights as well as the need to take into account the specific national conditions derived from the diversity of cultural, religious, social and economic in principle has been recognized by all states.15 The Foreign Minister of Singapore at the 1993 World Conference on Human Rights in Vienna warned that, “ Universal recognition of the ideal of human rights can be harmful if Universalist is used to deny or mask the reality of diversity”.16 It is actually to be understood correctly by those who still think on an absolute universalism. Nonetheless, human rights in the modern sense may have an analo- gous function to the one of liberalism in his time as providing a set of procedures and institutions for expressing and mediating between ulti- mate and sometimes incompatible values. Human rights may be the sort of middle ground necessary for preserving the plurality of values that he observed.17 The UN brings human rights in their heart to make peace and security but peace will not come instantly, it needs a process. Let them glimpse the higher life that belongs to all humanity.18
15 Nowak, Pengantar pada Rezim HAM Internasional (Raoul Wallenberg Intitute, Martinus Nijhoff Publisher) at 63. 16 Sen, supra n 15 at 21. 17 Stokke, ‘Modernization without Westernization? Asian Values and Human Rights Discourse in East and West’, in Jacobsen And Bruun (eds), Human Rights And Asian Values Contesting National Identities and Cultural Representations in Asia, (Loncon: Curzon Press, 2000) at 155. 18 Ryn, A Common Human Ground: Universality and Particularity in a Multicultural World (Colombia and London, University of Missouri Press, 2003). at 133.
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III. AHRD AS A NEW FORM OF UNIVERSALISM TOWARDS THE EFFECTIVE HUMAN RIGHTS IMPLEMENTATION IN ASEAN Asian region is a continent that fall within the third world in the tra- cheotomy of human rights concepts. It is a group of developing coun- tries which have diverse philosophy of life, ideologies, and historical background. Therefore it has its own concept of human rights [asian values - the concept particularism of human rights, which is different from the concept of universalism of human rights].19 Particularism value in the context of Asia can be seen in the propa- gation of the values of Asia (Asian Values) which is understood as a social morality that made resistance to the universal values which was considered as the hegemony of western culture20. It is also strengthen- ing the position in international politics over human rights in Asia. 21 The tension between the views of Universalism and particularism as the source and commitment affect the development of modernity for human rights in the global political discourse.22 Enthusiastic ASEAN governments are reflected in the participation of all ASEAN member states in the World Conference on Human Rights in Vienna in 1993 authorizing the Vienna Declaration and Programme of Action on Human Rights. At the same time the ten ASEAN member states have acceded the UDHR.23 The advancement of human rights further appears from the imple- mentation of the ASEAN Charter following by the establishment of the ASEAN human rights commission (ASEAN Inter-governmental Com-
19 Effendi, Hak Asasi Manusia, Dalam Hukum Nasional Dan Internasional (Malang: Ghalia Indonesia, 1993) at 23. 20 Hardiman, Hak-Hak Asasi Manusia : Polemik Dengan Agama Dan Kebudayaan (Yogyakarta: Kanisius, 2011) at 92. 21 Jacobsen And Bruun (eds), Human Rights And Asian Values Contesting National Identities and Cultural Representations in Asia, (London: Curzon Press, 2000). at 1. 22 Walker, ‘Universalism And Particularism in Human Rights : Trade-Off or Produc- tive Tension’ (2012) Research Paper Series No. 10, Endiburgh University at 1. 23 Mustikawati, ‘Perjalanan Penegakan Hak Asasi Manusia Di ASEAN Dan Peran Indonesia Dalam Mendukung Keberlanjutan AICHR’ (2011) Jurnal Demokrasi Dan Hak Asasi Manusia (Jakarta: The Habibie Centre) at 13.
Volume 11 Number 3 April 2014 403 Jurnal Hukum Internasional mission on Human Rights / hereinafter AICHR), which was formed in 2009 as mandated by the ASEAN Charter,24 and the peak is the recogni- tion of human rights in ADHR on 18 November 2012. ADHR is appreciated by many groups because it is considered as a main gate for the protection of human rights in the Southeast Asian re- gion. ADHR is a cornerstone for “ASEAN citizen” to have more bind- ing regional instruments in human rights.25 However, in addition of ap- preciation, a lot of criticism remains from both the content and process of the declarations. Civil society groups in ASEAN have expressed disappointment over the content and process of the first-ever ASEAN human rights dec- laration, which aims to ensure human rights protection for 600 million people in the region. Yuyun Wahyuningrum, senior advisor on ASEAN and Human Rights at the Human Rights Working Groups (HRWG), which represents more than 50 human rights groups in Indonesia, said that the draft did not reflect the universal values that ASEAN pledged to uphold. She said that the three detrimental articles undermined the ADHR, making it a watered-down version of universal values. A num- ber of articles in the draft suggested the declaration had become too much about negotiating the national interests of various ASEAN states rather than about improving human rights.26 Strongly supported by Harpe from Amnesty International, stated that ADHR not meet international standards of human rights. According to human rights cannot be limited by safety, morals and public order.27 That critic basically assumes that ADHR reflects Asian values as a form of particularism that is considered undermining universal human
24 Mustikawati, supra n 24 at 20. 25 Rachminawati and Syngellakis, ‘Law and Policy: A useful Model for ASEAN?’, In Novotny and Portela (eds), EU-ASEAN Relations in the 21st Century, (United King- dom: Palgrave Macmillan, 2012) at 116. 26 Ririhena, ‘First Asean Human Rights Declaration Criticized’, The Jakarta Post, Ja- karta | World | Mon, October 29 2012, 9:37 AM, available at: http://www.thejakarta- post.com/news/2012/10/29/first-asean-human-rights-declaration-criticized.html 27 Amnesty Internasional. ‘Deklarasi Hak Asasi Manusia ASEAN Kontroversial’, avail- able at
404 Volume 11 Number 3 April 2014 ASEAN Human Rights Declaration rights protection.28 Is it true? Which article is considered contrary to the universal values of human rights? I will not answer whether its is true or not, nor will defend universal- ist who much promoted by NGOs and would not also support the par- ticularist – to which, according to human rights NGOs is some ASEAN countries leader or government. The author will identify the content of the declaration are considered a form of particularism, which will then be analyzed by the authors by comparing to the application of margin of appreciation in the European regional under the Council of Europe. Some scholar argue that it is inappropriate comparing Asian val- ues to the margin of appreciation because of the historical background of human rights as well as its restriction in the European context is differ from Asia context.29 If the Margin of Appreciation is a doctrine associated with the implementation of restrictions on human rights in the ECHR where Member states enjoy a certain margin of apprecia- tion in asserting whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin will vary According to circumstances, subject matter and its background.30 Asian values doctrine denied the concept of universal human rights because the existence of local or cultural values are very diverse. It is affected by the religious values or beliefs of Asia such as Confucianism, Hinduism, and fundamental Islamism. The wording of both Asian values and margin of appreciation is indeed different, but if we look at the history of how the margin of ap- preciation developed, then the similarity will reveal. The fact that the member states of Council of Europe do not have common values with regard to human rights in all aspects, 31 rising the problems of imple-
28 Hukum Online, ‘HRWG Kritik Substansi Deklarasi Hak Asasi Manusia ASEAN’, available at
Volume 11 Number 3 April 2014 405 Jurnal Hukum Internasional mentation of the convention norms. Therefore Margin of Appreciation was designed to provide flexibility in resolving emerging conflicts from diverse social, political, cultural and legal traditions of the contracting states within the European context. 32 If Asian values attributed greatly influenced by religious valuesand beliefs which were assessed by universalist containing some practice of human rights violations such as the issue of caste which violated the equal and non discrimination principles. What about the human rights value in Europe? Does it not closely related to religious values or be- liefs? As already explained earlier that the concept of human rights in Europe is derived from the French Revolution, Christian Universalism and natural-law philosophy. The idea of universal human rights, there- fore, had a definite, particular and historically contingent political and philosophical base. So, it closely related to the European religious value and belief, respectively Christian.33 I believe that all religions and beliefs have a concept of its own hu- man rights. if religious values and beliefs truly understood, executed and interpreted properly as to the present context, there will be no more clash between religion or belief and human rights. Importantly noticed that the wording of human rights limitation in ADHR perceives as Asian values. What article and How the wording of it? article 7 of ADHR is one of harshly criticized. This article recognize the universalism and simultanously recognized particularism. “all human rights are universal, indivisible, interdependent and in- terrelated. All human rights and fundamental freedoms in this Declara- tion must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realization of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical
32 Onder Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases , German Law journal, vol 08 No. 07, http://www.germanlawjournal.org/pdfs/Vol08No07/PDF_Vol_08_No_07_711- 734_Articles_Bakircioglu.pdfat 711. 33 Freeman, ‘Universal Rights and Particular Cultures’, in Jacobsen And Bruun (eds), Human Rights Andasian Values Contesting National Identities and Cultural Repre- sentations in Asia, (London, Curzon Press, 2000).
406 Volume 11 Number 3 April 2014 ASEAN Human Rights Declaration and religious backgrounds”34 If we compare with the wording of limitation in the margin of appre- ciation and of certain article in ADHR, is different or similar? I must say the wording is similar. Further question is, similar in wording, Margin of Appreciation rarely considered as a European doctrine that reduces respect for human rights and is not in accordance with international hu- man rights standards, then why the restrictions in ADHR say so? Before elaborating more on the answer, would show that Asian val- ues was already manifest in a positive norm in a declaration. It indicates that Asian values are changed (at least from from 1967 - 1990). So, Asian values today is different from the past. It is a very positive change that is certainly not free from societal change towards acceptance hu- man rights in ASEAN. Of these changes clearly irrelevant if always discredit asian values as the biggest barrier of human rights. Bearing in mind the discussion of West vs. East seems already to be terminated. What should be done? We have to see the ADHR as a remarkable development towards universally recognized of UDHR. We could not then just see the restriction clause for example in article 7 of ADHR then claimed that a particularity is there and threaten the universal value. Margin of Appreciation will allow to be applied where there is an absence of a uniform European conception of the implications of the convention.35 ECtHR relies that national authorities are in a better posi- tion to obtain and assess local knowledge, which the court may either not have, or the significance of which it may misjudge.36 It is very clear that The margin of appreciation doctrine is the concept by which the Convention derives its force, meaning and effect. The margin of ap- preciation doctrine seeks to strike a fair balance between the demands of the general interest of the community and public order on the one hand, and the requirements of the protection of the individual rights and freedoms on the other, within the context and framework of the Con- vention. In arriving at such a balance the scope of a state’s right to limit
34 Article 7, ASEAN Declaration on Human Rights 2012. 35 De Schutter, International Human Rights Law Cases, Materials, Commentary, (UK: Cambridge University Press, 2010) at 447. 36 Greer, The European Convention On Human Rights Achievements, Problems and Prospects (United Kingdom: Cambridge University Press, 2006) at 224.
Volume 11 Number 3 April 2014 407 Jurnal Hukum Internasional and restrict the rights and freedoms of the individual will necessarily be determined.37 ECtHR judges awareness that universal values which enshrined in the ECHR can be applied effectively if it be enforced coercively. As explained in the previous part that it is the Margin of Appreciation who makes the ECHR and the ECtHR remains the conventions and institu- tions that are respected by the member states of the Council of Europe. Bearing in mind that more than 60 years, UDHR is not fully recognized in Asia region including certain state in Southeast Asia. Truthfully, it was not because of rejection of universal values that was brought by the UDHR but because there are several international human rights norms that forced to be applied universally in all countries. When there is a force there is actually violation of human rights occurred. At the be- ginning, human rights are recognition of existence of, respect for and protection of the human being becoming something with politicization and interests of some groups of countries. Paolo Carozza in Fifty Years of the European Court of Human Rights inauguration strongly stated that the history of regional sys- tems in general (vis-à-vis the universal human rights institutions and processes), and the history of the European Court within its own area, demonstrate that a degree of diversity and pluralism, within the limits of the requirements of human dignity, is not only compatible with the idea of human rights but even important to their realization. As we con- template the problem of fragmentation in international law, including human rights law, it may be important to remember that pluralism can in some circumstances also bring the benefits of dynamism, flexibility, healthy experimentation, and responsiveness of the law to society. Har- monization does not need to be homogenization. No less, may we hope for our regional systems and the democracies within them to be such laboratories for the realization of human rights.38 European experience should be remembered and noticed in an ap- 37 Tümay, ‘The “Margin of Appreciation Doctrine”Developed By The Case Law Of The European Court Of Human Rights’(2008) Ankara Law Review Vol. 5 No. 2 at 231. 38 Carozza, Fifty Years of the European Court of Human Rights viewed by Its Fellow International Courts, http://www.echr.coe.int/NR/rdonlyres/3B662702-FFDB-4187 AAC56B926725DF35/0/30012009PresidentCarozzaSeminar_eng_.pdf
408 Volume 11 Number 3 April 2014 ASEAN Human Rights Declaration propriate way as a lesson for Asean to harmonyze the international hu- man rights law in their region. I would emphasized more that he margin of appreciation is a universal value in principle but particular in prac- tice, and therefore I called it as a new forms of universalism that is able to bridge the conflict between universal and particular value of human rights. Thus, as well as a “new” Asian values currently contained in ADHR, conclude that ADHR is a new form of Universalism of human rights in ASEAN. Critics were filed against ADHR, for example article 7 as mentioned above, it is noting with all limitation in article 7 but, it is a critique of certain rights, a very sensitive one such as LGBTs rights. It is also a critic to the implementation of human rights in ASEAN.39 Critics of LGBTs rights which seemed that ADHR did not accom- modate their rights were ill founded. Ever in UDHR or ECHR never mentioned implicitly this particular minority group. As several cases in this regard in the ECtHR noted earlier, ECtHR provide different judg- ment in the case similar issue. This particular minority group rights indeed need to be protected, but how the state protect them will vary according to the justified limitation. Let the recognition of this group flow naturally. A second criticism goes to the implementation of ADHR. It stated unclearly that this is a problem of the implementation of ADHR but the authors conclude that the fearnes that the restriction is used to justify human rights limitation lead to human rights violation. The assumption that those limitations adhere the interest of several parties.40 It is under- standable, but however it does not appropriate if ADHR is not in line with international standard of human rights, in fact the international human rights law recognized those limitation. Lesson learned from Eu- rope is the existence of ECtHR as an observer and guardian of those limitations and of a whole convention. As frequently stated in this paper, ECtHR relies that national au- thorities are in a better position to obtain and assess local knowledge, which the court may either not have, or the significance of which it may 39 Villanueva, ASEAN ‘Magna Carta’ universalizes human rights, http://www.hrwg. org/en/asean/civil-society-activities/asean-human-rights-declaration 40 Ibid
Volume 11 Number 3 April 2014 409 Jurnal Hukum Internasional misjudge.41 However this margin of appreciation goes hand in hand with a European supervision embracing both the law and the decisions applying it.42 In response those thesis above, therefore Asean need to have an Asean Human Rights Court43 whose jurisdiction is to assess whether member states apply the Asian values enshrined in the ADHR propor- tionately pursuant to international human rights law. Judges of Asean Court of Human Rights require having a broad knowledge concerning the condition of each member states economically, socially, politically and culturally. AICHR does not seem to be able to play this function and role respectively. Colm Campbell and Avril McDonald suggested that the most im- portant than always criticizing Asian values or comparing the East ver- sus the West idea of human rights is supporting the efforts of ASEAN through upholding the ADHR, the “ASEAN Magna Charta”. It believes that the adoption of a human rights charter for the Pa- cific region would seem to be a realizable goal, and the efforts of re- gional human rights and democracy organizations, and legal groups, to achieve it should be supported, politically, diplomatically, and finan- cially. Assistance can also be extended in disseminating human rights information sub-regionally. A more robust role for states in the region with reasonably clean human rights records in promoting human rights and responding to violations should be encouraged. Existing mecha- nisms for monitoring human rights abuses during states of emergency need to be more forcefully employed. He Finally urged Western actors need to develop a greater understanding of, and empathy with, legiti- mate perspectives within Asia on appropriate formulations of universal human rights standards [as asia or other region understand Europe with its Margin of Appreciation].44
41 Greer, supra n 37. 42 De Schutter, supra n 36 at 334. 43 Rachminawati and Syngellakis, supra n 26 at 121. 44 Campbell and McDonald, ‘Practice to Theory: States of Emergency and Human Rights Protection In Asia’, In Jacobsen and Bruun (eds), Human Rights And Asian Values Contesting National Identities And Cultural Representations In Asia, (London: Curzon Press, 2000) at 278.
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IV. CONCLUSION Human rights in the modern sense may have an analogous function to the one of liberalism in his time as providing a set of procedures and institutions for expressing and mediating between ultimate and some- times incompatible values. Human rights may be the sort of middle ground necessary for preserving the plurality of values that he observed. Margin of Appreciation, despites its weaknesses it promises the in- ternational implementation of international human rights law gradually. However it needs for the articulation of solid and foreseeable criteria of each limitation. It is crucial for the future existence of the human rights to be legally and universally recognized. According to European experience, Asian Values today which en- shrined in the ADHR will not erode the universality of human rights, it is a new form of universalism of human rights. To be home grown and well implemented, human rights indeed has to take into account the political, economic, legal, social, cultural, historical and religious back- grounds. Of course we are heading up to be universal but however we have to go incrementally step by step in understanding and peace. Ac- cordingly, the most important things for ASEAN is the need to build the strong human rights mechanism through the establishment of ASEAN Court of Human Rights.
REFERENCES Books De Schutter, International Human Rights Law Cases, Materials, Commentary, (UK: Cambridge University Press, 2010). Effendi, Hak Asasi Manusia, Dalam Hukum Nasional Dan Internasional (Malang: Ghalia Indonesia, 1993). El Muhtaj, Dimensi-Dimensi HAM – Mengurai Hak Ekonomi, Sosial, an Budaya (Ra- jawali Pers, 2008). Greer, The European Convention On Human Rights Achievements, Problems and Prospects (United Kingdom: Cambridge University Press, 2006). Hardiman, Hak-Hak Asasi Manusia : Polemik Dengan Agama Dan Kebudayaan (Yo- gyakarta: Kanisius, 2011). Jacobsen And Bruun (eds), Human Rights And Asian Values Contesting National Identities and Cultural Representations in Asia, (London: Curzon Press, 2000). Nowak, Pengantar pada Rezim HAM Internasional, (Raoul Wallenberg Intitute, Mar-
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tinus Nijhoff Publisher). Ryn, A Common Human Ground: Universality and Particularity in a Multicultural World (Colombia and London, University of Missouri Press, 2003). Sen, Human Rights and Asean Values (New York: Carnegie Council on Ethics and International Affairs, 1997). Smith et al. (eds), Hukum Hak Asasi Manusia (Yogyakarta: Pusat Studi Hak Asasi Manusia Islam Indonesia, 2008).
Essays within books Campbell and McDonald, ‘Practice to Theory: States of Emergency and Human Rights Protection In Asia’, in Jacobsen And Bruun (eds), Human Rights And Asian Values Contesting National Identities And Cultural Representations In Asia (London: Curzon Press, 2000). Freeman, ‘Universal Rights and Particular Cultures’, in Jacobsen And Bruun (eds), Human Rights Andasian Values Contesting National Identities and Cultural Rep- resentations in Asia, (London, Curzon Press, 2000). Juwana, ‘Pemberdayaan Budaya Hukum Dalam Perlindungan Hak Asasi Manusia di Indonesia; Hak Asasi Manusia Dalam Perspektif Sistem Hukum Internasional’, in Muladi, Hak Asasi Manusia : Hakikat, Konsep, Dan Implikasinya Dalam Perspe- ktif Hukum Dan Masyarakat, (Bandung: Refika Aditama, 2009). Prosser, (forthcoming) ‘Universal Human Rights as Universal Values’, in Kulch and Prosser (eds) (forthcoming), Values at the Theoretical Crossroads of Culture. Intercultural Research, Vol 4. (Shanghai: Shanghai Foreign Language Eduation Press). Rachminawati and Syngellakis, ‘Law and Policy: A useful Model for ASEAN?’, In Novotny and Portela (eds), EU-ASEAN Relations in the 21st Century, (United Kingdom: Palgrave Macmillan, 2012). Stokke, ‘Modernization without Westernization? Asian Values and Human Rights Discourse in East and West’, in Jacobsen And Bruun (eds), Human Rights Anda- sian Values Contesting National Identities and Cultural Representations in Asia (london: Curzon Press, 2000). Suryono, ‘Implementasi Dan Sinkronisasi Hak Asasi Manusia Internasional Dan Nasional’, in Muladi, Hak Asasi Manusia Hakekat, Konsep Dan Implikasinya Dalam Perspektif Hukum Dan Masyarakat (Bandung: Refika Aditama, 2009).
Articles Mustikawati, ‘Perjalanan Penegakan Hak Asasi Manusia Di ASEAN Dan Peran Indo- nesia Dalam Mendukung Keberlanjutan AICHR’ (2011) Jurnal Demokrasi Dan Hak Asasi Manusia (Jakarta: The Habibie Centre). Tümay, ‘The “Margin of Appreciation Doctrine”Developed By The Case Law Of The European Court Of Human Rights’(2008) Ankara Law Review Vol. 5 No. 2.
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Unpublished Theses Donnaly, The Relative Universality of Human Rights (Revised), (Working paper no. 33, University of Denver, 2006). Walker, Universalism And Particularism in Human Rights : Trade-Off or Productive Tension (Research Paper Series No. 10, Endiburgh University, 2012).
Treaties Declaration Universal on Human Rights 1948 Asean Human Rights Declaration 2012
Electronic Sources Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases , German Law journal, vol 08 No. 07, http://www.germanlawjournal.org/pdfs/Vol08No07/PDF_Vol_08_No_07_711- 734_Articles_Bakircioglu.pdf, Carozza, Fifty Years of the European Court of Human Rights viewed by Its Fellow In- ternational Courts, http://www.echr.coe.int/NR/rdonlyres/3B662702-FFDB-4187 AAC56B926725DF35/0/30012009PresidentCarozzaSeminar_eng_.pdf Davies, An ASEAN Magna Carta, http://www.hrwg.org/en/asean/civil-society-activi- ties/asean-human-rights-declaration, 4 april 2013 Hukum Online, HRWG Kritik Substansi Deklarasi Hak Asasi Manusia ASEAN. Me- lalui < http://www.hukumonline.com/berita/baca/lt5063269e00520/hrwg-kritik- substansi-deklarasi-ham-asean> [26/09/2012] Ririhena, First Asean Human Rights Declaration Criticized, The Jakarta Post, Ja- karta | World | Mon, October 29 2012, 9:37 AM, http://www.thejakartapost.com/ news/2012/10/29/first-asean-human-rights-declaration-criticized.html Villanueva, ASEAN ‘Magna Carta’ universalizes human rights, http://www.hrwg.org/ en/asean/civil-society-activities/asean-human-rights-declaration
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EMPOWERING INTERNATIONAL COOPERATION’S ROLE IN THE FOLLOW OF ASSETS OF CORRUPTION’S RESULT
Ridwan Arifin *
Abstract
Corruption case no longer involves one party or one nation alone, but also involves many parties, too few countries. Corruption is no longer the case as an individual activity but a pattern of activity patterns and very organized group. Corruption is not just a question of a nation, but also the whole issue of the nations of the world. In the case of corruption, repression is not only a top priority in the effort bondage and punishment, but also a return on assets of the most important things to do. The effort of corruptor impoverishment through seizure of assets is often hampered in practice, whether it intersect due to international cooperation, and asset tracking models. Asset tracking assessed include broader search than money, because the pattern of money laundering is now not only in money but also other assets that are the result of corruption and or benefits resulting from the corruption.
Keywords: corruption, follow the assets, international cooperation, money laundering, international organized crime.
I. INTRODUCTION International community considers three major imminent problems that threaten the life of their nations, namely: corruption, drugs and ter- rorism.1 Of the three issues, corruption became the main focus of late, especially in Indonesia. Corruption, however its forms, has become a
* Obtained Bachelor of Law (S.H.) from Semarang State University (2013), Post- graduate student of Master of Law, University Gadjah Mada. 1 Erman, Novriady, “The Role of International Instrument in Assets Recovery: What Can We Learn So Far?” Opino Juris Journal Vol. 11 No. 01, 2012. p.17. See Fifty- seventh General Assembly, Third Committee, Critical Links Between Crime, Illicit Drugs, Corruption, and Terrorism: Revealed by 11 September Events, Third Commit- tee Told, Press Release of General Assembly GA/SHC/690, 1 October 2002; Chris- topher Spencer, Global Issues of the Twenty-First Century and United Nations Chal- lenges, A Guide to Facts and Views on Major or Future Trends, Canadian Department of Foreign Affairs and International Trade, 8 October 2011; Organized crime and drug trafficking major threats to international peace and security, UNODC head tells Security Council. Accessible at http://www.unodc.org/unodc/en/frontpage/2011/November/organized-crime-and- drug-trafficking-major-threats-to-international-peace-and-security.html.
414 Volume 11 Number 3 April 2014 Empowering international cooperation’s role in the follow of assets of corruption’s result common enemy is not only for Indonesia, but for all the nations of the world. Corruption activities carried out by corruptors no longer only covers one country alone but covers many countries and across borders and so organized, so that corruption is categorized into extra-ordinary crime. On the other hand, the expansion of new global markets, trade and finance, as well as telecommunications and travel, have fostered eco- nomic growth and allowed many to prosper, but have also presented criminals and corrupt opportunists the ability to exploit globalization’s gains with impunity in many cases.2 Furthermore, corruption stunts economic development as foreign direct investment is discouraged and local businesses often find it impossible to overcome extortive fees for licenses or ‘protection’ that are imposed by corrupt officials.3 Even, a conclusion drawn from a report produced by the United Nations Office on Drugs and Crime (UNODC) and the World Bank demonstrates that corruption serves in the first place amongst the afore- mentioned three causes for its total loss entailed to society.4 Whereas, the existing anti-corruption efforts should be focused on three main is- sues, namely prevention, eradication (repressive), corruption and asset recovery. Third it affirmed an interpretation that fighting corruption lies not only in the prevention and punishment of the criminals, but also includes measures that require the state to restore the financial losses resulting from the corruption. Then the failure of recovering assets from corruption can reduce the meaning and achievement of punishment of criminals.5 But, many corruptors hide corruption results in overseas bank accounts through money laundering mechanism that attempts to track down and return these assets to be difficult. Not infrequently the money laundering techniques perfected by accountants, lawyers, and 2 Paku Utama, “Asset Recovery: The Endless Fight” Opino Juris Journal Vo. 11 No. 01, 2012. p.2. See, UNODC. 2010. The Globalization of Crime: a Transnational Or- ganized Crime Threat Assessment. p.ii (hereafter Globalization of Crime), 3 Ibid p. 2-3. See, UNDP. 2008. Pacific Human Development Report: Tackling Cor- ruption, Transforming Lives. p. v-vi., 4 World Bank “Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities and Plans” Washington, 2007. 5 See, Ridwan Arifin. “The Effort of Corrupted Assets Recovery which being Abroad on Law Enforcement of Corruption Eradication Law in Indonesia” (Final Project, Faculty of Law. Semarang State University, 2013). p.3.
Volume 11 Number 3 April 2014 415 Jurnal Hukum Internasional even hired by corrupt bankers. It does look very difficult as what have been revealed by Isra6 that efforts to return assets stolen state (stolen asset recovery) through acts of corruption tend not easy to do, because the perpetrators of corruption have exceptional access extensive and difficult reached the hides and laundering money proceeds of crime of corruption.
II. PROBLEMS OF INTERNATIONAL ORGANIZED CRIME: CORRUPTION AND MONEY LAUNDERING IN INDONESIA Explaining of the problems and discussing about the solutions on inter-national organized crime, corruption and money laundering, is not as easy as what we assume for this, moreover to find an easy way to seize the assets of the corruption into the country. For example, in In- donesia, until now, only 36 cases of money laundering crimes (money laundering) that the legal process has been completed, of 147 suspi- cious transactions reported Transaction Reports and Analysis Centre INTRAC Finance or to the police. Of the 36 cases, 28 of which have been transferred to the public prosecutor.7 Even, Indonesia get into the black list in the money laundering act in the international arena, thus causing Indonesia’s reputation is very low.8 Arifin9 ever been described some of the factors which become the 6 Saldi Isra “Asset Recovery Corruption Through International Cooperation” (pa- per presented to Workshop on International Cooperation in Combating Corruption, Semarang 2008). 7 http://www.antikorupsi.org/id/content/baru-36-kasus-tindak-pidana-pencucian- uang-yang-tuntas 8 Indonesia’s poor reputation of handling cases of money laundering as the Financial Action Task Force accused the Indonesian government has not yet standardization prevention of money laundering act. Read release news, available at: http://www.tempo.co/read/news/2013/08/21/063506144/Indonesia-Masih-Masuk- Daftar-Hitam-Pencucian-Uang 9 Arifin ever tried to investigate the role of some institutions in Indonesia such as the Corruption Eradication Commission, the Attorney General, Directorate of Politi- cal Security and Territorial Ministry of Foreign Affairs, Ministry of Law and Human Rights, NCB Interpol Indonesia, and Central Authority. All have an important strate- gic role in corruption asset recovery efforts, but rather the main obstacle is the prob- lem of diplomacy and international cooperation. Because the assets of the corruption that infested in some countries very difficult returned for various reasons. Arifin said
416 Volume 11 Number 3 April 2014 Empowering international cooperation’s role in the follow of assets of corruption’s result problems in the process of asset returns, especially in Indonesia, are: different legal systems, weak political will, bilateral relations between Indonesia and other countries, the implementation of the principle of bank secrecy, and the verdict is weak. Furthermore, the problems of as- set recovery efforts during this extremely diverse, where barriers are in- fluenced by various factors. One of them is ever disclosed as Dutcher10 that white collar crime is almost related to the velocity of money is not just involve one party alone , but organized with a variety of acts such as fraud, bubbles, and even money laundering . Associated with legal substances,11 barriers were found to statutory regulations inadequate. Although Indonesia has ratified the UNCAC but the mechanism has not been regulated asset recovery clearer and more detailed. In addition to the different legal systems between Indo- nesia and the country in question is often a bottleneck in the process of recovering assets from the graft. At the ASEAN level despite there is MLA in criminal matters treaty which is then ratified through UU No. 15 of 2008 turned out to Singa- pore and other countries to apply the principle of non- retroactive so that Indonesia difficult to track and restore the pre-2008 assets . In addition to the rules of statutory barriers, legal structure in the case of law enforcement officers is also an obstacle. The lack of capac- ity of law enforcement agencies, particularly the judge’s ruling did not mention amount of assets to be seized and be everywhere became an obstacle. Because in many countries do not allow any fishing expedi- tion in the asset tracking. Another thing that is also an obstacle to efforts to return assets (asset that the court ruling did not specify the amount of assets and the location of the as- set is stored, so in an effort to return on assets located abroad becomes very difficult. See Op.Cit. Ridwan Arifin. “The Effort of Corrupted Assets Recovery which being Abroad on Law Enforcement of Corruption Eradication Law in Indonesia” (Final Project, Faculty of Law. Semarang State University, 2013). 10 J. Scoot Dutcer, “The Justification for Harsher Punishment of White-Collar and Corporate Crime” Arizona State Law Journal, Vol. 70: 1295, 2006. p. 1297. 11 Friedmaan ever been said that the law enforcement systems affected by legal sub- stance, legal structure, and legal culture. This thesis has known as Friedman Theory. Friedman, L.M, The Legal System: A Social Science Perspective. Russel Sage Foun- dation. 1975.
Volume 11 Number 3 April 2014 417 Jurnal Hukum Internasional recovery) was not only the number of assets that were taken out of the country, a different legal system, or the principles of banking secrecy , but one of them is the lack of law enforcement officers themselves. As confirmed by Gunarsih,12 that there are some obstacles, but the most crucial fact in its own law enforcement. The role of the judge is less than the maximum in the effort to return assets that are stored outside of the country. Though an absolute requirements that the assets be re- turned to Indonesia is following a court ruling in Indonesia, which has permanent legal force. Therefore, the investigation process should be speeded up trials. Even in the court verdict, the judge expressly Indone- sia should include what assets need to be returned and are in a country where the assets are now placed. So, instead of just arbitrarily called return on assets but not mentioned in detail. As detailed as it should be included in the decision, if not, it will be difficult refunded. Furthermore, the constraints are also found in some countries, the laws will strictly Bank Secrecy so that the investigator is often diffi- cult to keep track of assets suspected, despite the UNCAC. Even the ASEAN countries themselves have not fully ratified the UNCAC thus became its own obstacles. Concerning the relationship between coun- tries also poses its own in asset recovery. Surely it is a serious obstacle because the asset recovery process also requires diplomatic relations between the two countries. Of no less importance, are the obstacles are political and good will of the government of Indonesia. Indonesian bargaining position in in- ternational relation-ship or position, have not had a big impact even more political will of the government that are not exhibited significant. This is evident when Indonesia faced asset recovery cases that are in Singapore or in Swiss. Even to this day the Soeharto’s assets have not been able to be returned by Indonesia from Swiss. Obviously, all these constraints greatly affect the significance of asset recovery efforts as well as the progression of the assets can be returned to the country. These constraints must also be a challenge for
12 “Law enforcement officials must Understand Asset Recovery”, available at http:// www.hukumonline.com/ berita/baca/lt4ea0302d324cf/penegak-hukum-harus-paham- iasset-recovery, Accessed on 13th December 2012.
418 Volume 11 Number 3 April 2014 Empowering international cooperation’s role in the follow of assets of corruption’s result the government, together with law enforcement officials to continue to seek the return on assets as well as to make improvements so that the legal instrument asset recovery efforts can truly maximal and optimal. Of course, despite all obstacles and barriers faced and problems that occurred, restitution efforts of these assets are included in the frame- work to combat corruption, which is not only limited by the eradication of corruption eradication prevention, but are returned assets outcome criminal acts, corruption also became important. The framework of on- recht in actu as the strict enforcement form of the perpetrators of cor- ruptors and onrecht in potentie to continue to be able to prevent corrup- tion of assets results in an increasingly broad overseas until the assets, wherever located, can be confiscated and will be returned to the state. As law enforcement theory described by Soedarto,13 wherein the acts of grasping the law enforcement legal fight that occurred (onrecht in actu) and that it is possible to happen (onrecht in potentie). In other words, there is enforcement for currently thus prevention in the future.
III. STARTING THE INTERNATIONAL COOPERATION: FOL- LOW THE ASSETS, RETURNING THE PEOPLE’S MONEY Hoover14 ever been stated that the most effective weapon against crime is cooperation. Supradiono15 described that international coop- eration and partnerships are inevitably shaped by shifting international paradigm about corruption from the traditional to modern. First, cor- ruption is a global concern that is why corruption eradication has to be globalized. Globalization provides opportunities for increased interna- tional trade and investment, but as well as corruption. Second, corrup- tion is not merely a single jurisdiction issue but a multi-jurisdiction issue. The perpetrators of corruption are aware that overseas jurisdic- tions are safe haven for them. Third, global anti-corruption spirit has departed from conventional to a more sophisticated and globalized mo- dus operandi. It used to be that corruption was treated as an ordinary
13 Op.Cit. Sudarto, Capita Selecta of Criminal Law. Alumni, 1986. p.65. 14 Giri Supradiono, “Developing International Cooperation: A Need for Expediting Mutual Legal Assistance” Opinio Juris Journal Vo. 11 No. 01, 2012. p.63. 15 Ibid.
Volume 11 Number 3 April 2014 419 Jurnal Hukum Internasional and conventional crime, ending only with the trial and conviction of the perpetrators. These days, it is not enough to tackle down the criminals and put them in jail. It is also important to track and recover the assets that are stolen and hidden all over the world. Asset recovery is one paramount effort in the fight against corruption and money laundering. Furthermore, proceeds of corruption and money laundering will create another potential crime in fighting the law enforcement process. The ill- gotten money will be a source for another crime in order to cover crime under investigation or to support obstruction of justice. The weaker and poorer corruptors are, the easier the job of law enforcement becomes. Fourth, a transnational corruption requires swift and effective transna- tional law enforcement. The modus operandi often involves countries abroad as loci for transaction, safekeeping of stolen assets, hiding the evidences and sanctuary for fugitives. Today, corrupt officials and the bribers, ill-gotten gains and evidence of the crime may all be in multi-jurisdiction. Therefore, in this modern day and age, there needs to be a better way to address corruption. The fact that international cooperation has developed in recent years, there should not be any safe haven for corruptors to hide in this world. Wherever and whenever they hide, they have to be dealt with international law enforcement networks. Thus, fighting corruption today can no longer rely on conventional and traditional means. It must be done by modern, sophisticated means, in- volving international collaboration between law enforcement agencies and authorities from all over the world. In the other hand, Zinkernagel and Anja Roth16 said that there were two main barriers on returning assets, are: practical barrier and political economy barrier. Practical barriers to assets recovery consists of techni- cal obstacles: lack of capacities, lack of resources, formal requirements for MLA requests, unclear institutional responsibilities, and gaps in of ineffective enforcement of banking regulations in the requested states. Then, political economy barriers to assets recovery consists of: lack of political will, conflict of interest, corruption in anti-corruption institu- tions, misuse of asset recovery for political power games, and political considerations form the side of the requested state. That’s all like what
16 Gretta Fenner Zinkernagel and Anja Roth, “Practical Hurdles to Effective Interna- tional Recovery of Stolen Assets” Opino Juris Journal Vo. 11 No. 01, 2012.
420 Volume 11 Number 3 April 2014 Empowering international cooperation’s role in the follow of assets of corruption’s result explained before, that in recovering assets it will be affected not only by the regulation, but also the political will of state. Then, based on all existing conditions, international cooperation to be one of powerful ways, whether it formal or informal cooperation between countries and or between institutions. Follow the Assets effort not only to follow where that money flows but also money and assets wherever located, develops, and produces a larger asset. Because of corruption and all forms can be assessed as a result of profit a result of corruption crimes. Money laundering, which international scope, whether it placement process, layering, or integration, there were the organized process which not involve only one party, but many parties are organized. So, the international cooperation to follow the assets it become very important in this case. So, among the Anti-Corruption Agency, we are not stranger, but brother and sister in Justice.
IV. CONCLUSION Till today, we have to admit and couldn’t deny that international cooperation among the world of nations it become the main way of the modern way to not only fight against corruption as the international organized crime but to return the assets back to the country as the re- sponsibility forms to the people. Because, the money embezzled by cor- rupt our money but not actually belong to the people, and the people who should enjoy the money. International cooperation, especially on empowering role of international on following the assets of corruption, would be done effectively by diplomatic relationship, formal-informal cooperation, or with the shared commitments.
REFERENCES i. Books Friedman, L.M, The Legal System: A Social Science Perspective. Russel Sage Foun- dation. 1975. Sudarto, Capita Selecta of Criminal Law. Alumni, 1986.
Volume 11 Number 3 April 2014 421 Jurnal Hukum Internasional ii. Journal Articles Dutcer, J. Scoot, “The Justification for Harsher Punishment of White-Collar and Cor- porate Crime” Arizona State Law Journal, Vol. 70: 1295, 2006. Erman, Novriady, “The Role of International Instrument in Assets Recovery: What Can We Learn So Far?” Opino Juris Journal Vol. 11 No. 01, 2012. Utama, Paku, “Asset Recovery: The Endless Fight” Opino Juris Journal Vo. 11 No. 01, 2012. Supradiono, Giri, “Developing International Cooperation: A Need for Expediting Mu- tual Legal Assistance” Opino Juris Journal Vo. 11 No. 01, 2012. Zinkernagel, Gretta Fenner and Anja Roth, “Practical Hurdles to Effective Interna- tional Recovery of Stolen Assets” Opino Juris Journal Vo. 11 No. 01, 2012. iii. Theses Arifin, Ridwan. “The Effort of Corrupted Assets Recovery which being Abroad on Law Enforcement of Corruption Eradication Law in Indonesia” (Final Project, Faculty of Law. Semarang State University, 2013). iv. Conferences Saldi Isra “Asset Recovery Corruption Through International Cooperation” (paper presented to Workshop on International Cooperation in Combating Corruption, Semarang 2008). World Bank “Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities and Plans” Washington, 2007. v. Internet References […] http://www.antikorupsi.org/id/content/baru-36-kasus-tindak-pidana-pencu- cian-uang-yang-tuntas […] http://www.tempo.co/read/news/2013/08/21/063506144/Indonesia-Masih- Masuk-Daftar-Hitam-Pencucian-Uang […] “Law enforcement officials must Understand Asset Recovery”, available at http://www.hukumonline.com/ berita/baca/lt4ea0302d324cf/penegak-hukum-harus- paham-iasset-recovery, Accessed on 13th December 2012.
422 Volume 11 Number 3 April 2014
Immigration Policy and The Terrorist Threat in Canada and the United States
Reviewer : Andika Immanuel Simatupang Number of Page : 237 pages Author(s) : James Bisset, Martin Collacott, etc. Publisher : Fraser Institute
Immigrant and terrorist issues have recently be- come a significance polemic in North America es- pecially Canada-United States border. In Canada, immigrants take an important role in national secu- rity issue and it’s government political issue. The national security issues arise from the relation to the terrorism activity as the impact of the lenient border in Canada and the government political issue arise from the political parties and the officers that seem reluctant to eradicate this issue. The strictless border of the country increase the possibility of the terrorist networks to build their own local network starting from the grassroots. As the result, the possibility that they may use the host country as a place for recruitment, fund-raising, and a staging ground for terrorist attacks, abroad or in the host country, poses a clear and present danger is clearly predicted. The movement of the terrorist is also the main concern to be di- minished. This book is a festschrift from many different experts as the author of the articles. This book tries to formulate how the terror- ist threats is truly exist by examines the policies between Canada and United States and compares the strength and weakness of the policies so that the balance between immigration and national security will be maintained.
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This book contains 11 articles that grouped into four (4) systematic themes, e.g. (1) Mass Immigration and The Growing Threat of Ter- rorism, (2) Troubled Immigration and Refugee System, (3) Balancing Liberty and Security in the New Environtment, (4) The Challenge of Strengthening the Canada-US Border. Involving 12 authors, from US and Canada, from various expertise and education backgrounds guar- antees that the this book had been delivered by many perspectives that is important for the decision makers to read. The first theme of this book explains us some main idea on massive immigration that can connected to the terrorism activity. The authors of this section focuses on several issues like massive immigration im- pact on labour and fiscal policies, immigration patterns recently, also highlighted the serious terrorism threat that already exist like terrorist plot in Toronto in 2006. Another issue is that immigration, asylum, and visa systems are overwhelmed, those issues guide us to main idea on how terrorism threat is coming closer caused by massive immigration movement. The second theme is intended to examines the core problem on im- mgiration system policies. The authors in this section describes several main ideas that leads us to know further, especially in Canada, why the immigration system is so hard to be fixed. In Canada, refugee and im- migrants system is clearly imperfect, the system is also dysfunctional. In Canada, immigrants are able to have permanent residents based on self-selection and in the enforcement of such system in Canada is le- nient. Other important issue is that politicians in Canada seem reluctant to eradicate this issue for fear of losing votes from immigrants. They prefer their party’s electability to their own national security. The third theme specifically describes about the liberty and security in both countries. Both authors deliver their own perspective in view- ing the liberty for each people. One of the author this section explains about the liberty of civils, newcomers, and cultural diversity could be maintained in the face of terrorist threats. Another emerged issue is about the lack of coordinations between Canadian academics and gov- ernment officials when making policies regarding immigrations issue and also another discussion on the lack of eagerness from the politician on taking such measures to eradicate immigrants issue. They make de-
424 Volume 11 Number 3 April 2014 Book Review cisions reluctantly for securing electoral support for their parties. The fourth theme, as the last theme, elaborates the potential chal- lenges in order to combat threatning immigrants. The authors in this section suggest a better cooperation between US-Canada government to solve this problem together. Another suggestion is by strengthening the border control between both countries by highlighting the infrastructure and manpower aspect and also suggest a smarter, more cooperative and more coordinated perimeter efforts that will not costly.
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International Law-Making
SAARC Regional Convention on Suppression of Terrorism
Background South Asian Association for Regional Cooperation (SAARC) Re- gional Convention on Suppression of Terrorism (“Convention”) was adopted in Kathmandu, on 4 November 1987. The adoption of the text was a follow-up action to respond the agreements which had been made in Bangalore Summit Declaration of 17 November 1986 and Dhaka Summit on December 1985. The government of the State Parties real- ized that the cooperation among themselves was needed necessarily in preventing and eradicating terrorism. This convention mainly focused on the extradition regulation among the State Parties themselves relat- ing to the conduct of the offences caused by terrorism act.
Concept As stipulated in Article I, extradition only can be granted for the conduct considered as terroristic. The Convention itself does not define ‘terrorist act’ specifically, but it refers to the particular conducts and also the definition of the offences within the scope of other following Conventions: 1. Convention for the Suppression of Unlawful Seizure of Aircraft (Hague, 16 December 1971) 2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 23 September 1971) 3. Convention on the Prevention and Punishment of Crimes against internationally Protected Persons, including Diplomatic Agents (14 December 1973)
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4. An Offence within the scope of any Convention to which SAARC Member States concerned are parties and which bilges the parties to prosecute or grant extradition 5. Murder, manslaughter, assault causing bodily harm, kidnapping, hostage-taking, and offences relating to firearms, weapons, explosives, and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or serious damage to property 6. An attempt or conspiracy to commit the aforementioned offences, aiding, abetting, or counseling the commission of such an offence or participating as an accomplice in the offences so described.
Entry into Force The Convention entered into force on 22 August 1988. All seven States members of SAARC (Bangladesh, Bhutan, India, Maldives, Ne- pal, Pakistan, and Srilanka) are parties to the Convention.
Main Features The Convention cons ists of 11 articles. Mainly focus on the mecha- nism and regulation of extradition, the Convention required the existing extradition agreement between the Contracting States prior the Entry into Force of the Convention shall be amended in order to make it com- patible with the Convention. The Convention also becomes the basis for the extradition if there is no bilateral treaty between the requesting state and the requested state. Extradition shall be subject to the law of the requested state. The contracting state, subject to their national laws, shall develop mutual assistance among themselves and cooperate to the extent of ex- change of information intelligence, and expertise, and such appropriate cooperative measures. (DH) Additional Protocol to the South Asian Association for Regional Co-operation (SAARC) Regional Convention on Suppression of Ter- rorism
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Background Additional Protocol to the SAARC Regional Convention on Sup- pression of Terrorism (“Protocol”) was adopted at Islamabad on 6 Janu- ary 2004, following the result of the Eleventh SAARC Summit and the decision of the SAARC Council Ministers at its Twenty Third Ses- sion in Kathmandu on 22August 2002. The government and the council recognised the importance of updating the SAARC Regional Conven- tion on Suppression of Terrorism (“Convention”) in order to meet the obligations devolving in terms of Security Council Resolution 1373 (2001).
Concept The purpose of the Protocol is to strengthen the Convention, par- ticularly in adding the provisions of criminalizing, collection or acqui- sition of funds for the purpose of committing terrorist acts and taking further measures to prevent and suppress financing of the terrorist acts. The Protocol is supplementary to the Convention. Both Convention and Protocol shall be read and interpreted together as a single instrument.
Entry into Force The Protocol entered into force on 12 January 2006, to which all seven States members of SAARC (Bangladesh, Bhutan, India, Mal- dives, Nepal, Pakistan and Sri Lanka) are parties.
Main Concept The Protocol consists of 23 articles. It finally broadens its defini- tion of the actusreusin particular (as stipulated in Article 4). Its main focus is to regulate terrorist-related matters intended to support terror- ism activities, such as the fund and terrorism financing, trafficking in arms, narcotics, and psychotropic substances or other material, as well as money laundering. The State Parties are encouraged to be the parties of the international instrument listed in the Protocol Annex, namely: 1. Convention for the Suppression of Unlawful Seizure of Aircraft
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(Hague, 16 December 1971) 2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 23 September 1971) 3. Convention on the Prevention and Punishment of Crimes against internationally Protected Persons, including Diplomatic Agents (UN General Assembly, 14 December 1973) 4. International Convention against the Taking of Hostages, (UN General Assembly, 17 December 1979) 5. Convention on the Physical Protection of Nuclear Material (Vienna, 3 March 1980) 6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 24 February 1988) 7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 10 March 1988) 8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (Rome, 10 March 1988) 9. International Convention for the Suppression of Terrorist Bombing (UN General Assembly, 15 December 1997) 10. International Convention for the Suppression of Financing Terrorism (UN General Assembly, 9 December 1999)
Under this Protocol, each State Parties are obliged to develop some technical measures in their national or regional level. Article 6 of the Protocol extends the subject which held liability of such committed of- fence not only to individuals but also to legal entity. State Parties are also mandated to adapt their domestic legislation comprehensively, including supervisory regime for banks and other fi- nancial institutions, related to the practical measures to prevent, sup- press, and eradicate the financing of terrorism. This compulsory mea- sures applies to the prevention of money laundering as well, extending the provision to include the act committed both within and the outside the jurisdiction of a State Party. Seizure and confiscation of funds and other assets allegedly used or allocated for committing the offences are also permitted as long as it complies with the domestic regulations.
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The Protocol specifically regulates about cooperation among law enforcement authorities and on immigration and customs controls for the improvement to detect and prevent the international movement of terrorists and their accomplices and trafficking. Some important principles are also adopted in the Protocol, such as principles of sovereign equality and territorial integrity, and also prin- ciple of non-discrimination, regarding to the prosecution of a person on account of his race, religion, nationality, ethnic origin, or political opinion. At last, similar to the provision of the Convention, each state party are required to promote a mutual legal assistance and technical coop- eration with other regional and international organizations conducting activities related to the objectives and purposes of the Protocol. (DH)
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The Arab Convention on the Supression of Terrorism
Background The Arab Convention on the Supression of Terrorism (“Conven- tion”) was signed on April 22 1998 in Cairo, Egypt. This convention was concluded by Arab League, an regional organization that consisted of several middle-east countries. This Convention present a serious threat to hman rights in Arab countries. This Convention was open to accesion by the member states of the Arab League who did not partici- pate in its finalization (stated on the last preambular paragraph). This Convention confirms the commitment of the states parties to hu- man rights as defined in international human rights law. The preamble of the Convention states that it is “commited to the highest moral and reli- gious principles and, in particular, to the tenets of the Islamic Shari’a, as well as to humanitarian heritage of an Arab Nation that rejects all forms of violence and terrorism and advocates the protection of human rights, with which percepts the principles of internal law conform”. Concept In order to prevent any kind of terrorist offences, Arab League es- tablishes this Convention which mainly focusing on how the measure- ment and cooperation should be made. However, this Convention puts an interesting point in Article 2 (a) stating that all cases of struggle in- cluding armed struggle which against occupation and/or aggression for liberalisation and self-determination will not be considered as terrorist offence, but this Convention puts a limitiation to something that can be considered as political offence which stated in Article 2 (b).
Entry into Force The Convention entered into force on May 7th 1999 one month after its seventh ratification which in accordance with Article 40 which states the Convention shall enter into force on the 30th day after the instruments of ratification, acceptance, or approval are deposited by 7 Arab States.
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Main Features This Convention contains 42 articles which grouped into 4 parts which consecutively are Definitions and General Provisions, Principles of Arab Cooperation for the Supression of Terrorism, Mechanisms for Implementing Cooperation, and Final Provisions. Part 1 of this convention only consists of 2 articles, Article 1 and Ar- ticle 2. This part elaborate some definitions in this Convention and also the scope of terrorist offence in this Convention and other conventions mentioned in Article 1 paragraph 3. Article 2 stipulates the exception of the application of this Convention and some actions which disregarded as political offence. Part 2 of this convention elaborates the code of conduct in measur- ing and cooperating in preventing the terrorist offences and also the judicial cooperation . It also put some details in measuring the terrorist offence by obliged the parties enhancing the preventive measures men- tioned in Article 3 paragraph 1 and measures of suppresion in paragraph 2 the same Article. Article 4 in this convention lists the cooperation by; exchanging of information, investigations, and exchange of expertise. Article 5 up to 21 emphasize the judicial field in preventing the terrorist offence, some provisions are about extradition of offenders, judicial delegation, judicial cooperation, seizure of assets and proceeds derived from the offence and exchange of evidence. Part 3 of this Convention starts from Article 22 to Article 38 which mainly focusing on the mechanism in the implementation of the coop- eration. Article 22 up to Article 28 explain about the extradition proce- dures which shall be made by competent authorities in the contracting states. This part also explains the neccesary documents for extradition. Other things that provided in this part are the procedures for judicial delegation and measures for the protection of witnesses and experts. Part 4 of this Convention stipulates the provisions regarding the ratifi- cation, acceptance or approval and also the reservation clause and the denunciation mechanism from this Convention. (AIS)
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Convention of The Organization of The Islamic Conference on Combating International Terrorism
Background Convention of The Organization of The Islamic Conference on Combating International Terrorism was adopted in July 1st 1999 in Ouagadougou, Burkina Faso. This Convention makes clear that the OIC member states firmly reject terrorism, and it grounds that rejection in Islamic law. A preambular paragraph, for instance, states that “terror- ism cannot be justified in any way, and that it should therefore be un- ambiguously condemned in all its forms and manifestations, and all its actions, means and practices, whatever the origin, causes or purposes, including direct or indirect actions of States.”
Concept In order to prevent any kind of terrorist offences, Arab League es- tablishes this Convention which mainly focusing on how the measure- ment and cooperation should be made. However, this Convention puts an interesting point in Article 2 (a) stating that all cases of struggle in- cluding armed struggle which against occupation and/or aggression for liberalisation and self-determination will not be considered as terrorist offence, but this Convention puts a limitiation to something that can be considered as political offence which stated in Article 2 (b) and (c). The members of Organiaztion of Islamic Cooperation is also member of The Arab League so that this convention has similarities with the combating terrorism convention adopted by Arab League.
Entry into Force This Convention entered into force in 2002, pursuant to Article 40, it states that the Convention shall enter into force 30 days after the de- posit of seventh instrument of ratification or accession.
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Main Features This Convention consists of 42 article which grouped into 4 parts. First part of the convention is about Definition and General Provision. This part has 2 articles, Article 1 and 2. Article 1 contains definitions for the purpose of the Convention and also other conventions consid- ered as offence in terrorist crimes. This convention also categorizes the exceptional political actions which such actions could be considered as offence. This convention will not apply if there’s a struggle situation against foreign occupation, aggression, colonialism, and hegemony which aimes at liberalisation and self-determination. The second part of this convention is about Foundations of Islamic Cooperation for Combating Terrorism. Article 3 until Article 21 are in this part. The second part of the Convention focuses on measures to Prevent and Combat Terrorist Crimes which such measures are men- tioned in Article 3. This part also provides the Areas of Islamic Coop- eration for Preventing and Combating Terrorist Crimes by exchange of information, investigation, exchange of expertise and educational and information field. This part also explains about the extraditing condi- tions, rogatory commission, judicial cooperation, seized assets and pro- ceeds of the crime and exchange of evidence. Third part of thiscoventions provides the extradition procedures be- tween contracting states that shall be made through diplomatic channels or through the Ministry of Justice or their substitute and the documents needed for the extradition. Other things that explained in this part are the measures forrogatory commissions and protecting witnesses and experts. The fourth part of this Convention explains the ratification and the Entry into Force clause. But this covention is not open for reserva- tion according to Article 41 but the parties still could possibly withdraw their participation by submitting to the Secretary General of the organi- zation a writen request.(AIS)
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International Convention for The Suppression of Terrorist Bombings
Background International Convention For the Suppression of Terrorist Bomb- ings (“The Convention”) was adopted on 12 January 1998 in New York, United States of America. The Convention is a comprehensive treaty mainly focused on the enhancement international cooperation among States in devising and adopting effective and practical measures for the prevention of the acts of terrorism, and for the prosecution and punish- ment of their perpetrators (Preamble of the Convention). The Convention applies to all form of actions regarding explosives or lethal devices by the perpetrators. This Convention, however, only applies to perpetrators not in the nationality of the same state where the act is committed. The main focus of The Convention is to set rules and obligations in form of Cooperation to member States in detaining and transferring the Perpetrators committing such act not in the nationality of where the act is committed.
Concept The Convention is applicable, according to Article 3, where: 1. The offence is committed within a single State; 2. The alleged offender and the victims are nationals of that State; 3. The alleged offender is found in the territory of that State and no other State; and 4. No other State has a basis under Article 6, Paragraph 1, or Provisions to Articles 10 to 15.
Entry into Force The Convention entered into force on 23 May 2001 which requires 22 (twenty second) instruments of ratification, acceptance, approval, or ac- cession after the thirtieth day of its submission (Article 22 Paragraph 1).
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Main Features This Convention consist of Preamble and 24 Articles. The scope of the Convention is limited to unlawful acts to cause terror and damage using lethal explosives and not restricted to the per- son who delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or govern- ment facility, a public transportation system or an infrastructure facility. The Convention is not applicable in: a. The offence is committed within a single State; b. The alleged offender and the Victims are nationals of that State; c. The alleged offender is found in the territory of that State and no other State has a basis under Article 6 of the Convention in regards to the requirements of States rights and obligations to take measures necessary against the perpetrators. The Convention also provides cooperative mechanisms among par- ties in regards to the transfer of the perpetrator such as extradition (Ar- ticle 9(1)) and mutual legal assistance (Article 10(2)). In conclusion, Parties are required to establish jurisdiction over and make punishable, under their domestic laws, the offences described, to extradite or submit for prosecution persons alleged of committing or aiding in the commis- sion of the offences, and to assist each other in connection with criminal proceedings under the Convention. The offences referred to in the Con- vention are deemed to be extraditable offences between Parties under existing extradition treaties and under the Convention itself. (AD)
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International Convention for The Suppression of The Financing of Terrorism
Background The International Convention for The Suppression of the Financing of Terrorism (“The Convention) was adopted on December 9th 1999 in New York, United States of America. The Convention is a comprehen- sive treaty mainly focused on the enhancement of international coop- eration among States in devising and adopting effective measures for the prevention of the financing terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators (Preamble of the Convention).
Concept The scope of The Convention, as set forth in Article 2, is: “This Convention is applicable to any person commits an offence by any means, directly or indirectly, unlawfully, and willfully, provides or collects funds with the intention that they should be used, in full or in part, in order to carry out acts of terrorism” This Convention is supported with 9(nine) annexes to combat the act of financing of terrorism, such as: 1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970; 2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971; 3. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of he United Nations on 14 December 1973; 4. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; 5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980;
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6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988; 7. Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988; 8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988. 9. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.
Entry into Force The Convention entered into force on 10 April 2002 which requires the submission of 22 (twenty-second) instruments of ratification, accep- tance, approval or accession with the Secretary-General of the United Nations and the thirtieth day of such submission (Article 26(1)).
Main Features The Convention consists of Preamble and 28 Articles. According to Article 8 the Convention, each State Party has the ob- ligation for the identification, detection and freezing or seizure of any funds used or allocated for the purpose of committing the offences set forth in Article 2 as well as the proceeds derived from such offences, for purposes of possible forfeiture. The Convention provides cooperation mechanisms to prevent such offences stated in Article 2 by providing a specific obligation to afford assistance in connection with criminal investigations or criminal or extradition proceedings, including assis- tance in obtaining evidence in their possession necessary for the pro- ceedings (Article 12(1)). The Convention doesn’t allow State Parties to refuse a request for mutual legal assistance on the ground of bank secrecy (Article 12(2)).
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After the assistance given to another State Party, the requesting Party has an obligation for not transmitting or using information or evidence furnished by the requested Party for investigations, prosecutions or pro- ceedings other than those stated in the request without the prior consent of the requested Party (Article 12(3)). It is also possible to provide a mutual legal assistance concerning a fiscal offence (Article 13). (AD)
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International Convention for The Suppression of Acts of Nuclear Terrorism
Background The International Convention for The Suppression of acts of Nuclear Terrorism (“The Convention”) was adopted on April 13th 2005 in New York, United States of America. The Convention is a comprehensive treaty mainly focused on the enhancement of international cooperation between States in devising and adopting effective and practical mea- sures for the prevention of such acts of terrorism and for the prosecution and punishment of their perpetrators.
Concept The scope of the Convention is not broader than the two other inter- national conventions in regards to suppress terrorist bombings and fi- nancing to acts of terrorism. The Convention applies to acts committed by individuals. Within the meaning of the Convention, any person com- mits an offence if that person possess radioactive material or makes or possess a device with the intent to cause death or serious body injury or to cause substantial damage to property or to the environment. It is also within the scope of offence regulated in the Convention, acts constitute the use of threat of use of radioactive material or a device. Any person also commits a crime if that person attempts to commit an offence or participates as an accomplice in the commission of the above acts (Ar- ticle 2). It is also explicitly stated that the Convention is not applicable in the activities of armed conflict (Article 4).
Entry into Force The Convention entered into force on 7 July 2007 with requirements of 22 (twenty-second) instruments of ratification, acceptance, approval or accession after the thirtieth day of its submission (Article 25 (1)).
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Main Features The Convention consists of Preamble and 28 Articles. There are two mechanisms of cooperation provided by the Conven- tion, such as (Article 7(1)): a. Exchanging accurate and verified information in accordance with their national law and in the manner and subject to the conditions specified herein; b. Coordinating administrative and other measures taken as appropriate to detect, prevent, suppress and investigate the offences. The Convention allows an international organization to take part in such measure. It is stipulated that International Atomic Energy Agency (IAEA) shall give relevant recommendations and functions to ensure the protection of radioactive material (Article 8). The Convention also stipulates that each Party taking control of radioactive material, devic- es or nuclear facilities should adopt measures to render harmless such items and ensure that any nuclear material is held in accordance with IAEA safeguards. This article also regulates the return of the seized nuclear or devices to the Parties concerned (Article 18). The cooperation among State Parties could be in form of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in Article 2 (Article 14) (AD)
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Organization of African Union Convention on the Prevention and Combating of Terrorism
Background Organization of African Unity Convention on the Prevention and Combating of Terrorism (“Convention”) was adopted in Algiers, Alge- ria, on 14 July 1999. The Convention is one form to raise awareness about all forms of terrorism and its related links of organized crimes, including illicit trag- ic of arms, drugs and money laundering. One of the main focuses in the convention is its concern of the lives of the innocent women and children which are the most adversely af- fected by terrorism. This Convention particularly enacted to strengthen regional coop- eration to prevent and to combat terrorist acts.
Concept In the Convention, Terrorist act is defined as: 1. Any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause person or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: a. Intimidate, put in fear, force, coerce or induce any government, body, institution the general public or any segment thereof, to do or abstain from doing ay act, or to adopt or abandonment encouragement, attempt on a particular standpoint or to act ac- cording to certain principles; or b. Disrupt any public service, the delivery of any essential service to the public to create a public emergency or c. Create general insurrection in a State. 2. Any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing,
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or procurement of any person, with the intent to commit any act referred to the terrorist act as defined in the previous point.
Entry into Force The Convention entered into force on 6 December 2002 and was registered with United Nations on 23 July 2003. By February 2013, there are only 13 states out of 54 Member States of African Union that have not ratified the convention.
Main Features This Convention consists of Preamble and 23 articles in which are divided into 5 parts. 1. State Parties shall implement their national legislation in conformity with the ratified international instrument. It is all by means to make the act of terrorism punishable by appropriate penalties. 2. State Parties shall cooperate among themselves in the following areas particularly. a. Exchanging of information regarding acts and crimes commit- ted by terrorist group as well as the arrest of any person charged with terrorist acts. b. Exchanging of information regarding the seizure, confiscation of the instrumentalities intended for the purpose to commit a ter- rorist act. c. Exchanging studies and researches on hw to combat terrorist acts and to exchange expertise relating to the control of terrorist acts. d. Providing technical assistance, such as joint training courses, in order to improve scientific, technical, and operational capacities to prevent and combat the act of terrorist. 3. The State Parties jurisdiction established over terrorist acts are based on the principles of territorial, active nationality and passive nationality as well. 4. Each State Parties shall undertake to extradite any person charged with terrorist acts whenever it is requested by other State Parties. 5. An extra-territorial investigation (commission rogatoire) is
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conducted upon the request of a state party to the other state party relating to any judicial proceeding matters in the latter’s territory, in particular: a. The examination of witnesses and transcripts of statements made as evidence; b. The opening of judicial information; c. The initiation of investigation processes; d. The collection of documents and recordings or their authenti- cated copies; e. Conducting inspections and tracing of asses for evidentiary pur- pose f. Executing searches and seizures; and g. Service of judicial documents. A commission rogatoire may be refused whereas the same terrorist acts are also executed in the same or other States Parties, or the request is likely to affect sovereignty, security policy, and public order of the requested state. 6. Bilateral or multilateral agreements are properly feasible among the State Parties in mutual legal assistance procedure aiming the objectives of the convention. (DH)
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Protocol to the OAU Convention on the Prevention and Combating of Terrorism
Background Protocol to the OAU Convention on the Prevention and Combating of Terrorism (“Protocol”) was adopted in Addis Ababa, Ethiopia, on 2 July 2004. Pursuant to article 21 OAU Convention on the Prevention and Combating Terrorism (adopted in July 1999), a protocol shall be made if it was considered necessary. Thus, the making of the Protocol aimed to supplement the Convention.
Concept The main purpose of this Protocol, as stated in article 2, is to en- hance the effective implementation of the Convention and to give ef- fect about the need to coordinate and harmonise continent efforts in the prevention and combating terrorism, as well as the implementation of other relevant international instrument. The Protocol emphasized on the commitment among the parties to take such measures In order to fully ensure their active participation, cooperation, and coordination in its determined efforts to combat and eradicate terrorism.
Entry into Force The Protocol entered into force on 26 February 2014, which was the 30th day after the deposit of the fifteenth instrument of ratification. The fifteenth state to ratify the Protocol was Sahrawi Arab Democratic Republic. It deposited its instrument of ratification on 27 January 2014.
Main Features The Protocol consists of 12 articles. Some important measures re- quired to be undertaken by states relating to their aims stated in the objection of the Protocol, among others:
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1. Prevent the entry into, and the training of terrorist groups in their territories; 2. Identify, detect, confiscate and freeze or seize any funds and any other assets used or allocated for the purpose of committing a terrorist act, and to establish a mechanism to use such funds to compensate victims of terrorist acts o their families; 3. Establish national contact pints in order to facilitate the timely exchange and sharing of information on terrorist groups and activities at the regional, continental and international levels, including the cooperation of States for suppressing the financing of terrorism The Protocol also required establishment of a coordinating body, namely Peace and Security Council of the African Union (PSC). State Parties are obliged to submit reports to PSC on an annual basis regard- ing their implementation of the Protocol. In pursuing its endeavor to harmonise and to coordinate continental efforts in the prevention and combating terrorism, the PSC shall: 1. Establish mechanism to facilitate the exchange of information among State Parties regarding terrorism activities; 2. Present an annual report to the Assembly of the Union on the situation of terrorism in the continent; 3. Examine all reports submitted by the State Parties on the implementation of the provisions of this Protocol; 4. Establish an information network with national, regional, and international focal points on terrorism Besides PSC, there is Regional Mechanism in each national level of the State Parties. Together with PSC, the regional mechanism also plays a complementary role, especially in monitoring the implementation of the Protocol at the regional level. It establishes contact points on terror- ism and liaises with the Commission of PSC in developing measures for the prevention and combating terrorism. The mechanism for settlement of disputes is also established in the Protocol. In case of dispute or differences between State Parties arising from interpretation or application of the Protocol, the disputing parties can resolve amicably through direct consultation r refer it to the Court of Justice of the African Union. (DH)
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Inter-American Convention against Terrorism
Background Inter-American Convention against Terrorism (“Convention”) was adopted at Bridgetown, Barbados, on 3 June 2002. It was established as the follow-up step in response to the resolution RC.23/RES. 1/01 rev. 1 corr. 1 titled “Strengthening Hemispheric Cooperation to Pre- vent, Combat and Eliminate Terrorism”, which was adopted at the 23rd Meeting of Consultation of Ministers of Foreign Affairs.
Concept The purposes of this Convention are to prevent, punish and elimi- nate terrorism. The definition of offences regarded as terrorist act is not specifically defined in the Convention, but it refers to the existing definition established by other international instrument listed below: 1. Convention for the Suppression of Unlawful Seizure of Aircraft (Hague, 16 December 1971) 2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 23 September 1971) 3. Convention on the Prevention and Punishment of Crimes against internationally Protected Persons, including Diplomatic Agents ( UN General Assembly, 14 December 1973) 4. International Convention against the Taking of Hostages, (UN General Assembly, 17 December 1979) 5. Convention on the Physical Protection of Nuclear Material (Vienna, 3 March 1980) 6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 24 February 1988) 7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome, 10 March 1988) 8. Protocol for the Suppression of Unlawful Acts against the Safety of
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Fixed Platforms located on the Continental Shelf (Rome, 10 March 1988) 9. International Convention for the Suppression of Terrorist Bombing (UN General Assembly, 15 December 1997) 10. International Convention for the Suppression of Financing Terrorism (UN General Assembly, 9 December 1999)
In case that the State party to this Convention is not a party to one or more of international instrument listed above, that international instru- ment shall be deemed to have no effect to such state party in application of this Convention.
Entry into Force The Convention entered into force on 10 July 2003. Article 22 of the Convention stipulated that its Entry into Force commenced on the 30th day following the date of deposit of the sixth instrument of ratification of the Convention. Nicaragua was the sixth state to deposit its instru- ment of ratification of the Convention.
Main Features The convention consists of Preamble and 23 articles. Mostly, the Convention regulates about the domestic measures each state parties shall take in order to aim Convention’s objectives and purposes. The Convention set broadly about the common area that terrorism acts is usually related. Those areas are specified below. 1. Financing of terrorism 2. Seizure and confiscation of funds or other assets 3. Money laundering Each Party are also mandated to establish a mutual legal assistance, cooperation in extradition, cooperation among law enforcement author- ities, cooperation on border controls, training, consultations among the parties, and also cooperation through Organization of American States. There are also some exceptions in which the perpetrator cannot be granted for some particular reasons, namely political offence exception,
448 Volume 11 Number 3 April 2014 International Law-Making denial of refugee status, and denial of asylum. None of those exceptions could make a perpetrator or the alleged terrorism actor be free of any judicial process in a jurisdiction of a state party. One important principle adopted in the Protocol is the principle of non-discrimination, regarding to the prosecution of a person on account of his race, religion, nationality, ethnic origin, or political opinion. The Convention also obliged the state parties to carry out any measures with full respect for the rule of law, human rights, and fundamental free- doms. (DH)
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ASEAN Convention on Counter Terrorism
Background The ASEAN Convention on Counter Terrorism (“Convention”) were adopted on January 13th 2007 in Cebu, Philippines by all ASEAN leaders as a commitment in countering terrorism from the grassroots. As mentioned on its preambule, this Convention intends to improve regional cooperation on counter terrorism and undertake effective mea- sures through deepening cooperatio among ASEAN law enforcement agencies and relevant authorities in countering terrorrism and provide frameworks for all parties to this Convention on coordinating and mea- suring terrorism activities and responding to such activity. This Con- vention enhances the region’s strategic role in the global strategy on counter-terrorism.
Concept The Objective of this convention, as stipulated in its Article 1 to provide for the framework for regional cooperation to counter, prevent, and suppress terrorism in all its forms and manifestations and to deepen cooperation among law enforcement agencies and relevant authorities of the Parties in countering terrorism. The convention’s main scope is to combat all kind of offensses as mentioned in several conventions listed in its Article 3.
Entry into Force Pursuant to Article 21 paragraph 1 of this convention, the Conven- tion shall enter into force on the 30th day following the date of thte de- posit of sixth raification instrument. This Convention entered into force on May 27th 2011 after Brunai Darussalam became the sixth party to ratified this Convention. Now, all members of ASEAN have ratified this Convention as Malaysia becomes the 10th member to submit its ratifi- cation instrument back on 11 January 2013.
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Main Features This Convention contains 23 Articles which describes the code of conduct on countering terrorism in ASEAN region. General overview of this Covention, Article III and IV highlights the recognized general norms in International which are Sovereign Equality, Territorial Integri- ty and Non-Interferece. Article 2 of this convention mentions the scope of “offence” in several listed coventions that are deemed as terrorism activity in this convention and under Article 6 the areas of cooperation that need a spesific and appropriate measures that is accordance with domestic law is explained. This convention will not applied when the terrorism activity occurs only involving a single party where no other party could not exercise its jurisdiction, pursuant to article 5. Other party could exercise the jurisdiction if only they fullfil the conditions setforth in Article 7 of this Convetion. The following articles will mainly focused on the alleged offender and the party’s obligation to treat such offender. Article 8 of this con- vention inteds to guarantee the rights of the alleged offenders when they are taken into custody, and Article 10 stipulates the refugee status that granted to person(s) which oliged the granting state to take a right mea- surement according to applicable international laws, human rights laws, and domestic laws before granting the refugee status, so the asylum seekers will not participated in any kinds of terrorism activities. Article 12 stipulates that any offender shall enjoy a mutual legal assistance during the prosecution proceeding. This Conventions also describes the Extradition condition on its Article 13 and also states that this conven- tion can be regarded as extradition treaty if there’s no extradition treaty before between the states.
Dispute Settlement Pursuant to Article 19 regarding the dispute settlement mechanism, the disputed parties shall settle the dispute by consultation and negotia- tion through Diplomatic Channel or through any other peaceful way agreed between disputed parties. (AIS)
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Woolwich Attack: An Act of Terrorism?
http://www.aljazeera.com/programmes/insidestory/2013/05/201352484123205176.html,
A British soldier found dead ernment - they don’t care about on Wednesday due to an allega- you” justified one of the suspects. tion of a revenge attack against The statement cause British’s the government’s foreign policy Prime Minister, David Cameron, which cause Muslims killed every along with London’s Mayor of day. According to witnesses on the Boris Johnson gave his sudden re- scene, the soldier, who was wear- sponse in an emergency meeting, ing a t-shirt with the army char- saying Britain would not give into ity “Help for Heroes” logo on it, violent extremism and terror. was run down by a car, and then attacked and stabbed to death in “This country will be absolute- the middle of passers-by in the ly resolute in its stand against vio- London suburb of Woolwich. lent extremism and terror. We will never give into terror, or terror- The murder was conducted using ism, in any of its forms. Second, weapons including a cleaver in this view is shared by every com- a broad daylight, approximately munity in our country. This was 400 meters away from an army not just an attack on Britain and barracks. on the British way of life, it was Police suspected two men also a betrayal of Islam and of the responsible for the murder and Muslim Communities who give so charged them after the Police shot much to ur country,” Cameron de- them. clared. “We must fight them as they Two questions were rose in fight us. An eye-for-an-eye and a regards with the murder. First, is tooth-for-a-tooth. I apologize that Britain’s Prime Minister right to women had to witness this today, call he incident as an act of ter- but in our land, our women have rorism? And second, how will this to see the same. You people will play into concerns about the rise never be safe. Remove your gov- in Islamophobia in the UK?
452 Volume 11 Number 3 April 2014 International Law-in News In order to answer those ques- In that discussion, Shiraz Ma- tion, Inside Story, a British tele- her gave his opinion regarding the vision show tried to provide a attack. He believed that the attack discussion with Steve Park, a ter- was categorized as an ideological rorism and security expert; Keith attack in purpose to deliver po- Vaz, British Labor MP and chair- litical message. The perpetrators man of the Home Affairs Select wanted to target elements of the Committee; Shiraz Maher, head of State, because it was addressed to outreach at the International Cen- a soldier, which is the symbol of ter for the Study of Radicalization the State. The attack didn’t happen at King’s College London; and to any of the passes-bystanders. Baroness SayeedaWarsi, Britain’s first ever minister for Faith and (AD) Communities.
Nigeria Students Killed in College Attack
http://www.theguardian.com/world/2013/sep/29/nigeria-students-killed-attack-college
Dozens of students had been were going to be soldiers and po- gunned down by suspected Islam- lice protection for the school. ic extremists in their dormitories There had been similar at- on Yobe State College of Agricul- tack in the past week causing 30 ture in Guiba, north-east Nigeria. people died. According to the lo- According to the school’s provost, cal council chairman, Modu-Ga- Molima Idi Mato, the attack took naBukarSheriiff, Twenty-seven place at night-time when the stu- people died in separate attacks on dents were sleeping. Death toll Wednesday and Thursday night in this attack reached 42 and 18 in two villages of Borno state, lo- injured and has been transported cated near the north-east border to Damaturu specialist hospital with Cameroon. On Thursday while the other 1000 students fled the same week, the suspected mil- the college. itants also killed a pastor, his son The government gave the col- and a village head. They also used lege no security forces, but only a explosives to set fire to the church mere assurance and promise there and five other homes.
Volume 11 Number 3 April 2014 453 Jurnal Hukum Internasional
Because of the threats and se- and Chad. ries of attacks in recent weeks, North-east Nigeria is under a farmers and government official military state of emergency to bat- are fleeing to a mountainous area with caves, Gwoza Hills. The area tle the Islamist uprising by Boko was used as a shelter by the peo- Haram (“western education is for- ple in order to avoid the militants. bidden”) militants who have killed The official said the Gwoza local more than 1,700 people since government has set up offices in 2010. The purpose of the attacks Maiduguri, the state capital to the was to create an Islamic state. north. More than 30.000 people (AD) have successfully fled the terrorist attacks to neighboring Cameroon
The New Face of Terror http://www.economist.com/news/leaders/21586832-west-thought-it-was-winning-battle-against-jihadist- terrorism-it-should-think-again?zid=312&ah=da4ed4425e74339883d473adf5773841
When Osama Bin Laden was harried by Yemeni troops. The killed in 2011, the west thought Shabab was under similar pressure that it was winning the battle in Somalia, as Western-backed against terrorist. But, the fact African Union forces chased them showed the opposite. al-Qaeda’s out of the main cities. Above all, central leadership, holed up near the Arab spring had derailed al- the Afghan border in Pakistan’s Qaeda’s central claim that corrupt North Waziristan, was on the regimes supported by the West ropes, hollowed out by drone at- could be overthrown only through tacks and able to communicate violence. Those happened even with the rest of the network only before the killing of Bin Laden. with difficulty and at great risk. The terrorism has come in a Al-Qaeda in the Arabian Peninsu- new form. The struggle to depose la (AQAP), its most capable fran- the Assad regime in Syria has act- chise as far as mounting attacks ed as a magnet for thousands of on the West is concerned, was be- would-be jihadists from all over ing hit hard by drone strikes and the Muslim world and from Mus-
454 Volume 11 Number 3 April 2014 International Law-in News lim communities in Europe and and jihadist websites and televi- North America. The once largely sion channels. Money still flows moderate and secular Syrian Free from rich Gulf Arabs, supposedly Army has been progressively dis- the West’s friends, to finance these placed by better-organised and activities and worse. More pres- better-funded jihadist groups that sure should be brought to bear on have direct links with al-Qaeda. their governments to stop this. For The most dismaying aspect of the entire West’s supposedly huge al-Qaeda’s revival is the extent soft power, it has been feeble in its to which its pernicious ideology, efforts to win over moderate Mus- now aided by the failures of the lims in the most important battle Arab spring, continues to spread of all, that of ideas. through madrassas and mosques (DH)
Ex-Guantanamo Detainee MoazzamBegg Arrested by Terror Police
http://www.bbc.co.uk/news/uk-england-birmingham-26335261
MrBegg, 45, who was held by Sparkhill - are being held on sus- the US authorities for almost three picion of facilitating terrorism years, was arrested earlier with overseas. two other men and a woman in the MrBegg, a British citizen orig- West Midlands. He was detained inally from Birmingham, moved on suspicion of attending a terror- to Afghanistan with his family in ist training camp and facilitating 2001, before moving to Pakistan terrorism overseas in 2002 when the Afghanistan war MrBegg was arrested in Hall started. Green in Birmingham. The other He was arrested in Islamabad people arrested - a 36-year-old in January 2002 and taken to Ba- man from Shirley, a 44-year-old gram internment centre in Afghan- woman and her son, 20, both from
Volume 11 Number 3 April 2014 455 Jurnal Hukum Internasional istan for about a year before being the families of people who have transferred to the Guantanamo been detained, has never been Bay US detention camp in Cuba. charged with an offence. He was released in Janu- He has always maintained that ary 2005 with three other British he was only involved in charity citizens and returned to the UK. work and has never been involved MrBegg, who is now a director of in any kind of terrorist activity. campaign group Cage which helps (DH)
Threat of Terrorism Still Present in The Region : Foreign Minister
http://www.dailynewsegypt.com/2014/03/09/threat-terrorism-still-present-region-foreign-minister/
Egypt is set on activating the support for the Saudi decision decision to consider the Muslim to consider the Muslim Brother- Brotherhood a terrorist organisa- hood a terrorist organisation and tion using the Arab Convention described the Saudi decision as a for the Suppression of Terrorism, “significant step”, Emirati state- said Foreign Minister Nabil Fah- agency WAM reported. my on Sunday. Saudi Arabia announced on During a speech before Arab Friday that the Brotherhood would foreign ministers in the Arab be listed as a terror organisa- League Fahmy said activating tion along with two Syrian jihadi the decision would necessitate groups. The UAE said it will not signatories to avoid harbouring spare an effort to cooperate with terrorists or advocates of terror- Saudi Arabia in tackling those ter- ism, avoid funding terrorism and rorist groups by “liquidating all providing cooperation from “ev- forms of material and moral sup- eryone” in the extradition of those port in all circumstances.” wanted or convicted in terrorism Egypt’s Ministry of Foreign cases. Affairs on Saturday welcomed Fahmy’s speech comes after Saudi Arabia’s decision to list the the United Arab Emirates’ (UAE) Muslim Brotherhood as a terrorist foreign ministry announced full organisation. Foreign
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Foreign Minister Fahmy said Brotherhood a terrorist organisa- the decision also requires setting tion and that the organisation will up a special, urgent meeting that be legally accountable under Arti- includes Arabic justice and interi- cle 86 of the Egyptian Penal Code. or ministers within the framework Both Saudi Arabia and the of the convention and with the UAE were quick to announce sup- purpose of looking into the level port for Egypt’s interim govern- of commitment to implementing ment, which came to power on 3 the convention and its operational July following the ouster of for- procedures. mer president Mohamed Morsi. Egypt’s foreign ministry Within days of Morsi’s ouster, spokesman BadrAbdelatty stated Saudi Arabia, the Emirates and on Saturday that the Egypt has Kuwait pledged billions of dollars sent letters around the world to in aid to Egypt. The value of the explain the “legal tests” associ- Emirati aid was $3bn, including ated with the decision in order “to a $1bn grant to Egypt and a $2bn explain this matter to the different loan. Saudi Arabia pledged $5bn capitals of the world.” in aid in petroleum products, de- On 25 December, the Egyptian posits and grants. government deemed the Muslim (AIS)
Are Terrorists Behind Malaysian Airline Crash? Fears Grow After It Emerges Two Passengers Were Using Stolen Passports
http://www.mirror.co.uk/news/world-news/missing-malaysia-airlines-flight-fears-3221742
Fears terrorists were behind victims presumed dead after the the Malaysian Airline crash were Boeing 777 crashed into the South growing tonight as it emerged China Sea. But Luigi Maraldi con- two passengers were using stolen tacted his family to say he was safe passports, the Sunday People re- and well and Christian Kozel was ported. An Italian and an Austrian found at home by Austrian police. were feared to be among the 239 The revelations raise the fear that
Volume 11 Number 3 April 2014 457 Jurnal Hukum Internasional terrorism may have played a part sible terrorism.” Flight MH370 in the sudden disappearance of was carrying 227 passengers, in- the air liner that was flying from cluding two children, and 12 crew Kuala Lumpur to Beijing. members. Among them were 152 Chinese nationals, 38 Malaysians, A 12-mile oil slick was spot- 12 people from Indonesia and six ted during an aerial search which from Australia. There were no re- was called off before nightfall, ports of bad weather and no sign leaving naval ships and fishing why the Rolls-Royce Trent en- vessels to look for survivors. The gine-powered plane would have plane was last detected on radar at vanished from radar screens about 5.30pm UK time on Friday around an hour after it took off. Specu- 100 miles north of the Malaysian lation about the involvement of coast. An airline tracking website terrorists took hold after Luigi suggested it plunged 650ft and Maraldi, 37, from Cesena, was changed direction before it van- named as one of the passengers on ished. Even before news of sto- board the plane. But he spoke to len passports emerged, experts his parents from Thailand to tell had raised the spectre of a terror- them he was not on board - and ist bomb. Pilot David Learmount, that his passport had been stolen who is operations and safety editor last August. Then it emerged that of Flight Global magazine, said: the passport of Austrian MrKozel “Something happened and the pi- was onboard the flight. lots did not tell anyone. Why? It’s a good question. “It’s extraordi- A foreign ministry spokesman nary the pilots failed to call be- in Vienna said the Austrian na- tional was safe at home. He said: cause they had plenty of time to. “Our embassy got the informa- Unless there was a bomb on board tion that there was an Austrian on but there has been no evidence of board. That was the passenger list that.” from Malaysia Airlines. Our sys- Aviation expert Chris Yates tem came back with a note that told Sky News: “We simply don’t this is a stolen passport.” Police know the circumstances behind found the man at his home. The what caused that crash at the mo- passport was stolen two years ment. “There will be two areas ago while he was travelling in for the investigation: the mainte- Thailand, the spokesman said. He nance of the aircraft and also pos- added: “It’s interesting that there
458 Volume 11 Number 3 April 2014 International Law-in News were two cases on the same plane was on his way to do his first shift but we just know that our Aus- as part of a fly in-fly out job in trian was not on board. “Some- Mongolia. It was meant to be the one used a document to get on the start of a dream job for the me- plane. But whoever used that, we chanical engineer. Last night his have nothing to say about that, we wife Danica said she was trying don’t know, that would be for the to come to grips with the tragic authorities to look into.” Malay- news. The couple have a three- sian Prime Minister NajibRazak year-old son named Lincoln and said: “The search and rescue op- a 10-month-old called Jack. Mr erations will continue as long as Weeks is originally from New necessary.” Fifteen Malaysian air Zealand and moved to Australia in force aircraft, six navy ships and 2011 to work in the mining indus- three coast guard vessels were in- try after six years in the army. volved in the rescue effort. China In Kuala Lumpur, Hamid and the Philippines have sent ships Ramlan, a 56-year-old police of- to a region near the South China ficer, said his daughter and son-in- Sea to help. law had been on the flight for an The United States, the Phil- intended holiday in Beijing. “My ippines and Singapore also dis- wife is crying,” he said. “Every- patched military planes to help in one is sad. My house has become the search. China also put other a place of mourning. This is Al- ships and aircraft on standby. “We lah’s will. We have to accept it.” are doing everything in our power Chinese relatives waiting in Bei- to locate the plane,” Transport jing Airport are furious at the lack of information and told reporters Minister Hishammuddin Hussein they have been treated “worse said. “Our hope is that the people than dogs” by Malaysia Airline. understand we are being as trans- Family members were taken to parent as we can, we are giving a hotel, put in a room and told information as quickly as we can, to wait for information from the but we want to make sure infor- airline, but none came. About 20 mation has been verified.” people stormed out of the room at Meanwhile, distraught rela- one point, enraged they had been tives were trying to come to terms given no information. “There’s no with the tragedy. The wife of Paul one from the company here, we Weeks told how the 39-year-old can’t find a single person. They’ve
Volume 11 Number 3 April 2014 459 Jurnal Hukum Internasional just shut us in this room and told identified Malaysia Airlines of- us to wait,” said one middle-aged ficial spoke to reporters for just man, who declined to give his a few minutes without taking name. “We want someone to show questions before leaving. “We their face. They haven’t even giv- en us the passenger list,” he said. are working with authorities who Another relative, trying to evade have activated the search and res- a throng of reporters, muttered: cue teams,” the official said. “Our “They’re treating us worse than thoughts and prayers are deeply dogs.” with the affected passengers and Amid chaotic scenes, an un- their family members.”(AIS)
460 Volume 11 Number 3 April 2014 Jurnal Hukum Internasional Indonesian Journal of International Law
Volume 1 Number 1 - October 2003 Volume 1 Number 3 - April 2004 (HUMAN SECURITY) (MARINE LAW AFFAIRS)
Honorary Article: Honorary Article: Prof. Mochtar Kusumaatmadja Prof. Hasjim Djalal Konsep Hukum Negara Nusantara pada Konferensi Piracy in South East Asia: Indonesian & Regional Hukum Laut III (Statement on the Third United Na- Responses tions Conference on the Law of the Sea in Caracas, Main Articles: July 15th 1974) Prof. Etty R. Agoes Main Articles: Praktik Negara-Negara atas Konsepsi Negara Kepu- Bo Asplund and Romeo A. Reyes lauan Human Security, Human Development and the Mill- Purwito Martosubroto ennium Development Goals Perkembangan Pengelolaan Perikanan Global Djauhari Oratmangun Melda Kamil Ariadno Human Development and Human Security: A Journey Praktik Pembenderaan Kembali (Reflagging) pada towards a Humane Global World Kapal Penangkap Ikan Syahrial Loetan Adi Sumardiman Millenium Development Goals (MDG) dan Program Beberapa Dasar Tentang Pembatasan Negara Pembangunan Nasional di Indonesia General Articles: General Articles: Prof. Abdul Bari Azed Prof. Hikmahanto Juwana Reformasi Politik Hukum Kewarganegaraan Sebagai Hukum Internasional sebagai Instrumen Politik: Be- Agenda Indonesia Dewasa ini berapa Pengalaman Indonesia sebagai Studi Kasus Prof. Zulfa Djoko Basuki Prof. Aloysius Uwiyono Perkawinan Campuran Serta Permasalahan Hukum- Peranan Hukum Perburuhan Dalam Era Globalisasi nya di Indonesia Dewasa ini Agus Sardjono Prof. Hendra Tanu Atmadja Perlindungan Folklore: Apakah Rezim Hak Cipta Dampak Konvensi Internasional Terhadap Perkem- Memadai? bangan Hukum Hak Cipta di Indonesia
Volume 1 Number 2 - January 2004 Volume 1 Number 4 - August 2004 (INTERNATIONAL TRADE) (INTERNATIONAL CRIMINAL LAW)
Honorary Article: Honorary Article: H. S. Kartadjoemena Prof. Muladi Preparing for the Challenge of Governance in Interna- International Criminal Court in Comparison with the tional Economic Relations in the 21st Century: A Plea Indonesian Human Rights Court to the Indonesian Legal Profession Main Articles: Main Articles: Prof. Romli Atmasasmita Adolf Warouw International Cooperation on Combating Human Sistem Perdagangan Multilateral Dalam Kerangka Trafficking Especially Women and Children: A View WTO Suatu Observasi Terhadap “Rule-Based Sy- from Indonesia stem” Prof. Mardjono Reksodiputro A. Zen Umar Purba Kejahatan Korporasi Suatu Fenomena Lama dalam TRIPs dan Negara-Negara Berkembang Bentuk Baru Djunari I. Waskito Prof. Harkristuti Harkrisnowo Persaingan Usaha di Forum WTO dan Perlunya Ke- Domestic Violence (Kekerasan Dalam Rumah Tang- tentuan Mengenai M&A ga) dalam Perspektif Kriminologi dan Yuridis Agus Brotosusilo Prof. Hikmahanto Juwana International Trade Indicators 2003: Indonesia Konsep Tanggung Jawab Pimpinan dalam Hukum General Articles: Pidana Internasional: Kajian atas Penerapan di Indo- Prof. Harkristuti Harkrisnowo nesia Transnational Organized Crime: Dalam Perspektif Abdul Hakim Garuda Nusantara Hukum Pidana dan Kriminologi Penerapan Hukum Internasional dalam Kasus Pelang- Yunus Husein garan HAM Berat di Indonesia Tindak Pidana Pencucian Uang (Money Laundering) General Articles: Dalam Perspektif Hukum Internasional Bhatara Ibnu Reza Menguak Penghilangan Paksa: Suatu Tinjauan dari Segi Politik dan Hukum Internasional Huala Adolf Hukum Internasional sebagai Lex Causae oleh Badan Arbitrase Komersial Internasional Topo Santoso Proses Pemilu di Indonesia dari Sudut Pandang Ob- server Asing Volume 11 Number 3 April 2014 Volume 2 Number 1 - October 2004 Volume 2 Number 2 - January 2005 (REFUGEE LAW) (INTERNATIONAL ENVIRONMENTAL LAW)
Honorary Article: Honorary Article: Stephane Jaquement Mas Achmad Santosa Mandat dan Fungsi dari Komisariat Tinggi PBB Uru- The Rights to a Healthy Environmental: International san Pengungsi (UNHCR) Law Perspective Main Articles: Main Articles: Prof. Sri Setianingsih Suwardi Prof. Daud Silalahi Aspek Hukum Masalah Pengungsi Internasional Peranan dan Kedudukan Hukum Lingkungan Interna- Enny Soeprapto sional Dewasa Ini Promotion of Refugee Law in Indonesia Inar Ichsana Ishak Sigit Riyanto Penaatan atas Perjanjian Multilateral di Bidang Ling- The Urgency of Refugee Legislation in Indonesia and kungan Hidup the Present Obstacles Windu Kisworo Ajat Sudrajat Havid Pelarangan Submarine Tailing Disposal (STD) di Pengungsi Dalam Kerangka Kebijakan Keimigrasian Berbagai Negara Serta Aksi Hukum yang Dapat Dila- Indonesia Kini dan yang Akan Datang kukan General Articles: Marsudi Triatmodjo Prof. Ismail Suny Implikasi Berlakunya Protokol Kyoto-1997 Terhadap Reformasi Perserikatan Bangsa-Bangsa (Beberapa Indonesia Usaha Indonesia) Longgena Ginting Agus Sardjono Hak-Hak Lingkungan Hidup Sebagai Hak Asasi Ma- HaKI dan Masyarakat Lokal Indonesia nusia Heru Susetyo General Articles: Kebijakan Penanganan Internally Displaced Persons Prof. L.J.J. Rogier (IDPs) di Indonesia dan Dunia Internasional Recent Developments in Administrative Law in the Netherlands and the European Union Abdulkadir Jailani Hukum Internasional Pasca Perang Irak: Legalisasi Politik Internasional dan Politisasi Hukum Interna- sional
Special Edition - December 2004 Volume 2 Number 3 - April 2005 (NATIONAL JURISDICTION AT SEA) (RESPONSIBLE FISHERIES)
Honorary Article: Honorary Article: Bernard Kent Sondakh Purwito Martosubroto Pengamanan Wilayah Laut Indonesia Implementation of the Code of Conduct for Respon- sible Fisheries in the Marine Fisheries Sector Main Articles: Main Articles: Y. Didik Heru Purnomo Prof. Hasjim Djalal Pengamanan Wilayah RI Bagian Barat Kerja Sama Perikanan dalam Forum Negara-Negara Bambang Susanto Anggota Lor-ARC (Indian Ocean Rim-Association Kajian Yuridis Permasalahan Batas Maritim Wilayah for Regional Cooperation) Laut Republik Indonesia Luky Adrianto Sudjatmiko & Rusdi Ridwan Implementasi Code of Conduct for Responsible Fis- Batas-Batas Maritim Antara Republik Indonesia den- heries dalam Perspektif Negara Berkembang gan Negara Tetangga Melda Kamil Ariadno Wignyo Handoko Kepentingan Indonesia dalam Pengelolaan Perikanan Kebijakan Pengawasan Sumber Daya Kelautan dan Laut Bebas Perikanan Darmawan Indonesia dalam Kerja Sama Perikanan Tangkap Re- General Articles: gional: Tinjauan Aspek Dasar Kesiapan dan Imple- Harsono Soepardjo mentasinya Dewasa Ini Kebijakan Kelautan Indonesia (KKI) Indonesian General Articles: Ocean Policy Prof. Indriyanto Seno Adji Agus Sardjono “Overheidsbeleid” & Asas “Materiele Weder-rechte- Posisi Politik Ekonomi Indonesia di Bidang Kelautan lijkheid” dan Perikanan Suatu Telaah Aspek Hukum Chandra Motik Yusuf Djemat Fredy B.L. Tobing ISPS Code Diterapkan di Pelabuhan Perikanan Samu- Peran Negara Dalam Menangani Isu Bajak Laut yang dera Jakarta, Mungkinkah? Bersifat Transnasional di Asia Tenggara Volume 2 Number 4 - July 2005 Volume 3 Number 2 - January 2006 (STATE JURISDICTION) (AIR LAW)
Honorary Article: Honorary Article: Prof. Sumaryo Suryokusumo Prof. Priyatna Abdurrasyid Yurisdiksi Negara vs. Yurisdiksi Ekstra Teritorial Kebutuhan Perangkat Hukum Nasional dan Interna- Main Articles: sional dalam Rangka Penataan Dirgantara Nasional Ferry Adamhar Main Articles: Permasalahan WNI Baik TKI Maupun Non-TKI di Prof. E. Saefullah Luar Negeri Penggunaan Ruang Udara Indonesia bagi Penerban- Nicholas T. Dammen gan Berjadwal Ditinjau dari Segi Hukum Udara In- Kewenangan Perwakilan Republik Indonesia di Luar ternasional Negeri Moh. Iksan Tatang Djoko Handono Praktik Indonesia dalam Pemanfaatan Wilayah Udara Perlindungan Warga Negara Dalam Perbandingan General Articles: General Articles: Prof. Eddy Damian Prof. Ismail Suny Plagiat dan Pembajakan sebagai Pelanggaran Hukum Democrazation Process in Indonesia Hak Cipta Prof. Abdul Bari Azed Prof. Hikmahanto Juwana Kedudukan Konsultan Hak Kekayaan Intelektual Ser- Penegakan Hukum dalam Kajian Law and Develop- ta Kebijakan HKI ment: Problem dan Fundamen bagi Solusi di Indone- Maria Farida Indriati Suprapto sia Tinjauan Terhadap Materi dan Kedudukan Ketetapan MPR/MPRS Staatsgrundgesetz
Volume 3 Number 1 - October 2005 Volume 3 Number 3 - April 2006 (INTERNATIONAL ORGANIZATIONS) (FOREIGN RELATIONS)
Honorary Article: Honorary Article: Nugroho Wisnumurthi Sayidiman Suryohadiprojo UN Reform: Expectation of Justice Hubungan Indonesia-Amerika yang Tidak Mudah Main Articles: Main Articles: Prof. Sumaryo Suryokusumo Prof. Joel N. Ngugi Agresi dalam Perspektif Hukum Internasional The World Bank and The Ideology of Reform and De- Bantarto Bandoro velopment In International Economic Development UN Reform and Its Mandate on International Peace Discourse and Security Zainuddin Djafar Melda Kamil Ariadno Hubungan Indonesia-Malaysia: Memerlukan Per- European Union dalam Hukum International spektif dan Kebijakan Baru? General Articles: Bantarto Bandoro Agus Sardjono Globalisasi, Netwar, dan Isu-Isu Strategis di Asia Pa- Upaya Perlindungan HKI yang Terkait Dengan sifik GRTKFdi Tingkat Nasional dan Internasional: Upaya Faustinus Andrea yang Belum Sebanding Indonesia dan Komunitas ASEAN Emmy Y. Ruru General Articles: Standar Internasional Tentang “Governance” dan Anna Erliyana Pengaruhnya Pada Praktik Domestik Suatu Negara Penegakan Rasa Aman Melalui Intervensi Kemanu- siaan Safri Nugraha Otoritas Pemerintah Daerah Dalam Konteks Hukum Internasional Tinjauan Hukum Otonomi Daerah Volume 3 Number 4 - July 2006 Volume 4 Number 2 – January 2007 (TREATIES) (NATURAL RESOURCES)
Honorary Article Honorary Article Prof. Ko Swan Sik Prof. Mochtar Kusumaatmadja Beberapa Aspek Kenisbian dan Kesamaran Perjanjian Sovereign Rights Over Indonesian Natural Resources: Internasional An Archipelagic concept of Rational and Sustainable Main Articles Resource Management Prof. Sri S. Suwardi Main Articles Perjanjian Internasional yang Dibuat oleh Organisasi Prof. A Zen Umar Purba Internasional Kepentingan Negara dalam Industri Perminyakan di Harry P. Haryono Indonesia: Hukum Internasional, Konstitusi, dan Glo- Evaluasi atas Pelaksanaan Undang-undang Nomor 24 balisasi Tahun 2001 tentang Perjanjian Internasional Arsegianto Aleksius Jemadu Extraction of Petroleum Resources Proses Peacebuilding Aceh: Dari MoU Helsinki Bambang Widarsono Menuju Implementasi Undang-undang tentang Pe- Economic and Legal Views of Depletion Premium in merintahan Aceh the Indonesian’s Natural Gas: Production, Reserves, Adolf Warouw and Challenges GATS dan Regulasi Nasional Masalah Rekonsiliasi General Articles Dua Tujuan dan Kepentingan Edie Toet Hendratno Emmy Yuhassarie Desentralisasi yang Mengarah ke Sistem Federal dan Traktat Internasional dan Paradoks Globalisasi Pengaruhnya Terhadap Pelaksanaan Fungsi Negara General Articles Topo Santoso Prof. Zulfa Djoko Basuki Election Offences as the Ground of Election Petition: Dampak Perkawinan Campuran Terhadap Anak A Comparative Analysis Mutiara Hikmah Christhophorus Barutu Perlindungan Hak-Hak Perempuan dalam Perkawin- Dumping Dalam Perdagangan Internasional dan Me- an Campuran Berdasarkan Instrumen-Instrumen In- kanisme Penyelesaian Sengketa Dumping Melalui ternasional tentang World Trade Organization Asasi Manusia
Volume 4 Number 1 - October 2007 Volume 4 Number 3 - April 2007 (INTERNATIONAL HUMANITARIAN LAW AND (AGRICULTURE) HUMAN RIGHTS) Honorary Article Honorary Article Anton Apriyantono Prof. Sri S. Suwardi Kepentingan Pertanian Indonesia dalam Perdagangan Serangan Israel Terhadap Lebanon Dikaitkan dengan Internasional Prinsip-Prinsip Hukum Humaniter Main Articles Main Articles Asianto Sinambela Prof. Hikmahanto Juwana Doha Development Agenda Negotiations on Agricul- Human Rights in Indonesia tural Sector Prof. Romly Atmasasmita Delima Hasri Azahari dan Iskandar Panjaitan Karakteristik Tindak Pidana dalam Statuta ICC dan Pertanian Indonesia dalam Perundingan Aturan Per- Dampak Pembentukan Pengadilan Pidana Interna- dagangan Internasional sional (ICC) Terhadap Perkembangan Hukum Pidana General Articles Aleksius Jemadu Irfan Maksum Problem of Human Rights in World Politics: Three Memahami Desentralisasi Fungsional (Perbandingan Indonesian Case Studies Praktik di Belanda, Jepang, USA, dan Jerman) General Articles Teguh Sulistia Gemala Dewi Pengaturan Perang dan Konflik Bersenjata dalam Hu- Worker’s Rights According To Islamic Law Perspec- kum Humaniter Internasional tive (The Principle of Mudharabah) That Can Be Ap- Burhan D. Magenda plied In Trade and Investment Agreements Berbagai Aspek Globalisasi dan Pengaruhnya pada Yasmine M.S. Soraya Tata Hubungan Internasional Perlindungan Tahanan Pada Kamp-Kamp Penahanan Amerika Serikat Volume 4 Number 4 - July 2007 Volume 5 Number 2 - January 2008 (FORESTRY) (FREE MARKET)
Honorary Article Honorary Article Bambang Setiono dan Yunus Husein (The Center for Prof. Erman Rajagukguk International Forestry Research/CIFOR) Implementation of the 1958 New York Convention Memerangi Kejahatan Kehutanan dan Mendorong in Several Asian Countries: The Refusal of Foreign Prinsip Kehati-hatian Perbankan untuk Mewujudkan Arbitral Awards Enforcement on the Grounds of Pu- Pengelolaan Hutan yang Berkelanjutan Pendekatan blic Policy Anti Pencucian Uang Main Articles Main Articles Syahmin A.K. Aleksius Jemadu Strategi Indonesia dalam Menghadapi Tirani Perda- Belajar dari Kegagalan Politik Pengelolaan SDA gangan Bebas Orde Baru: Studi Kasus Kalimantan Timur Yetty Komalasari Dewi Endah Murniningtyas The WTO Dispute Settlement System: Issues on Im- Tropical Deforestation as an International Externality: plementation The Property Right Issue Ade Maman Suherman Melda Kamil Ariadno Perdagangan Bebas (Free Trade) dalam Perspektif Beyond the Northwest Forest Plan Keadilan Internasional General Articles Tri Harnowo Mardani Peninjauan Ulang Ketentuan Retaliasi sebagai Refor- Aborsi dalam Perspektif Hukum Islam masi Aturan Penyelesaian Sengketa WTO M. Rizal Alif General Articles Dapatkah Anak Indonesia Diadopsi oleh Orang Asing Muhammad Ashri Ditinjau dari Aspek Hukum Perdata Internasional Gugatan Warga dan Tanggung Jawab Negara dalam Pemenuhan Hak atas Pendidikan Mutiara Hikmah Pengakuan dan Pelaksanaan Putusan Arbitrase Asing di Indonesia Rizal Alif Perspektif Transaksi E-Commerce di Era Globalisasi Perdagangan Bebas dalam Hukum Perjanjian di In- donesia
Volume 5 Number 1 - October 2007 Volume 5 Number 3 - April 2008 (INTERNATIONAL CRIME) (TREATY AND NATIONAL LAW)
Honorary Article Honorary Article Prof. Romli Atmasasmita Prof. Ko Swan Sik Ekstradisi dalam Meningkatkan Kerja Sama Peneg- Beberapa Catatan atas Permasalahan Treaty di Indo- akan Hukum nesia Main Articles Main Articles Teguh Sulistia Prof. Hikmahanto Juwana Peran International Criminal Court dan Kejahatan Catatan atas Masalah Aktual Perjanjian Internasional Terhadap Kemanusiaan oleh Militer Prof. A. Zen Umar Purba Bhatara Ibnu Reza Berbagai Isu Aktual Dalam Pelaksanaan Undang- The International Criminal Court: An Analysis of Re- Undang Perjanjian Internasional publican Liberalism Perspective I Wayan Parthiana General Articles Kajian Akademis (Teoritis dan Praktis) atas Undang- Tomi Suryo Utomo Undang Nomor 24 Tahun 2000 tentang Perjanjian Access to Essential Medicine Issue and the Doha De- Internasional Berdasarkan Hukum Perjanjian Inter- claration: contents, the legal status and the problems nasional with implementation Damos Dumoli Agusman Arie Afriansyah Status Perjanjian Internasional Dalam Hukum Nasio- Contemporary Existence and Relevance of the Law nal RI Tinjauan Dari Pespektif Praktik Indonesia of the Use of Force, the United Nations and the UN Melda Kamil Ariadno Charter Kedudukan Hukum Internasional Dalam Sistem Hu- kum Nasional General Articles Prof. Muhammad Mustofa Bilateral Cooperation Between Indonesia and Malay- sia in Combating Transnational Crime Sri Laksmi Anindita Hukum Yang Dipergunakan Dalam Kontrak Dagang Internasional Volume 5 Number 4 - July 2008 Volume 6 Number 2 – January 2009 (LABOR LAW) (ASEAN)
Honorary Article Honorary Article Prof. Aloysius Uwiyono Termsak Chalermpalanupap Indonesian Labor Reform Since 1998 The ASEAN Secretariat and Legal Issues Arising Main Articles From ASEAN Charter Prof. R. Blainpain Main Articles The European Union and Employment Law Djauhari Oratmangun Michele Colucci and Felix Majani ASEAN Charter: A New Beginning For Southeast The FIFA Regulations on the Labor Regulations Asian Nation Surya Tjandra and Rita Olivia Tambunan Zainuddin Jafar How Low Can Labor Law Go? Informalisation of Piagam ASEAN, Legalitas Tonggak Baru Menuju In- Work and Its Impact Upon Woman Workers in Indo- tegrasi Regional nesia Syamsul Hadi Syamsul Hadi Checkbook Diplomacy Jepang dalam Hubungan Sekuritasasi dan Upaya Peningkatan Perlindungan dengan ASEAN : Relevansi dan Tantangan bagi In- Terhadap Tenaga Kerja Indonesia di Malaysia donesia General Articles General Articles Prof. G.H. Addink Marthinus Omba The Transparancy Prinsiple oin the Framework of the Tanggung Jawab dan Peranan Dewan keamanan Per- WTO serikatan Bangsa-Bangsa dalam Memelihara Perda- Jemmy Rumengan maian dan Kemanan Internasional Perspektif Hukum dan Ekonomi Atas Kerjasama Luar Negeri oleh Pemerintah Daerah
Volume 6 Number 1 – October 2008 SPECIAL EDITION MEI 2009 (INTELLECTUAL PROPERTY RIGHTS) (IPR,CULTURE AND HIGH TECHNOLOGY)
Honorary Article Honorary Article Cita Citrawinda Yo Takagi TRIPS Agreement and Pharmaceutical Patent Protec- Intellectual Property, Culture and High Technology tion in Indonesia Main Articles Main Articles Andy N. Sommeng Prof. Agus Sardjono Kebijakan Nasional Sistem Hak Kekayaan Intelektual Current Trends and New Approaches for IP Education Prof. Agus Sardjono Training and Research (Indonesian Perspective) Pendidikan HKI dan IP Academy Hayyan ul Haq Cita Citrawinda Noerhadi The Optimization of Knowledge Resources through Perkembangan Internasional dan Isu-isu dibidang Tailor-Made Intellectual Property and Contract Law Hak Kekayaan Intelektual in Indonesia James Sundah Frans H. Winata Perlindungan UU HKI (Hak Atas Kekayaan Intelek- Perlindungan atas Merek Terkenal tual) atau Hak Cipta di zaman e.D.A.N (elektronik- General Articles Digital-Angka-angka-Niru) Prof. Frank Hendrickx General Articles Trade Union Rights in the European internal Market : Tomi Suryo Utomo the Laval and Viking cases Pharmaceutical Patent Protection Versus National Hesty D.Lestari Drug Policy in India: A Tension between International Komunitas ASEAN : Penyelesaian Sengketa dan Pe- Standards and Domestic Developmental Policy negakan Hukum Dwi Agustine Kurniasih Perlindungan Hukum Pemilik Merek Terdaftar dari Perbuatan Passing Off (Pemboncengan Reputasi) Volume 6 Number 3 – April 2009 Volume 7 Number 1 – October 2009 (MARITIME DIPLOMACY) (INTELLECTUAL PROPERTY RIGHTS)
Honorary Article Honorary Article Arif Havas Oegroseno Yunus Hussein Status Hukum Pulau-Pulau Terluar Indonesia National and International Cooperation in the Preven- Main Articles tion and Eradication of Money Laundering Prof. Hasjim Djalal Main Articles Regulation of International Strait Prof. Achmad Zen Umar Purba Nugroho Wisnumurti Production Sharing Contract: Is It Within Private or Maritime Security Issues in South East Asia: An In- Public Domain? donesian Perpective Adolf Warouw Prof. Etty R. Agoes Fundamental Changes of International Economic Upaya Diplomatik Indonesia dalam Penetapan Alur- Law: Challenges toward Legal System Based on Fair- alur Laut Kepulauan Indonesia ness and Human Values General Articles Prof. Adler Haymans Manurung R.A Valentina dan Lydya Hayaty Investing and Protection of Investor in Stock Market Keberlakuan Daftar Negatif Investasi, Kasus: Investa- General Articles si Qatar Telecom (Qtel) di Indonesia Melda Kamil Ariadno, S.H., LL.M. Bambang Prabowo Soedarso Maritime Security in South East Asia: Indonesian Potret Hukum Pertambangan di Indonesia dalam Era Perspective UU No.4 Tahun 1999 Alfitri, S.H., LL.M. Can the Requirement of Shariah Law Regarding Cri- minal Punishments be Interpreted in a Way that is Compatible with the ICCPR and CAT?
Volume 6 Number 4 – July 2009 Volume 7 Number 2 – January 2010 (AIR TERRITORY) (VARIOUS ASPECTS OF INTERNATIONAL LAW)
Honorary Article Honorary Article Prof. Priyatna Abdurrasyid Prof. Agus Sardjono State Sovereignty in Air Space Author’s Right is not only Copyright Main Articles Main Articles Prof. E. Saefullah Wiradipradja Muhammad Putra Iqbal Wilayah Udara Negara (State Air Territory) Ditinjau Preventing Retaliation in Trade by Harmonizing the dari Segi Hukum Internasional dan Nasional Indone- SPS Measures sia Arie Afriansyah Mufti Makaarim Environmental Protection and State Responsibility in Strategi Pengelolaan dan Pertahanan Wilayah Perba- International Humanitarian Law tasan Udara Wilayah Republik Indonesia: Tantangan Rheny Wahyuni Pulungan Aspek Politik, Yuridis, dan Operasional Enhancing Maritime Security in the Malacca Strait: Harry P. Haryono Cooperation Against Piracy and Maritime Terrorism Wilayah Udara Indonesia: Sudahkah Kita Meman- Paku Utama faatkannya dan Menjaganya? International Cooperation: Calling as an Urge in Figh- General Articles ting International Financial Organized Crime; Global Mutiara Hikmah Corruption Hak-hak Komunitas Adat Terpencil dari Perspektif Fatmawati Hak Asasi Manusia Constitution Amendment Process: A Comparison bet- Topo Santoso ween Indonesia and Japan Kewenangan Electoral Management Bodies dalam Luhut M.P. Pangaribuan menangani tindak pidana Pemilu dalam Perspektif The Concepts of Criminal Justice System (CJS): Con- Perbandingan vergence General Articles Prof. Arie Hutagalung The Practices of Encumberance and the Performance of Execution over Hak Tanggungan in Indonesia Da- lam Era UU No. 4 Tahun 1999 Volume 7 Number 3 – April 2010 Volume 8 Number 1 – October 2010 (HUMAN RIGHTS LAW) (PROGRESSIVE DEVELOPMENT OF INTERNA- TIONAL LAW PART I) Honorary Article Prof. Satya Arinanto Honorary Article Human Rights in Context of the Historical Non Ali- Prof. E. Saefullah Wiradipradja gned Countries Debates on Universalism and Cultural Open Skies Policy: The Developing Countries Point Relativism and Current Human Rights Development of View in Indonesia Main Articles Muhammad Indra Main Articles The Echoes of International Human Rights Law: In Rachminawati Perspective of Law Enforcement Dimension to Deal Lesson Learned for ASEAN from the Integration of with Irregular Immigrants in Indonesia Human Rights in the European Union Prof. W.J. Oostwouder Eddy Immanuel Doloksaribu and Rouli Anita Velen- Do the European and Dutch Rules on Variable Re- tina Napitupulu muneration of Financial Institutions Match and Can Is There any Regulation to Protect People with Mental Remuneration be regulated on a European Level? Disorder in Indonesia? Prof. H. Priyatna Abdurrasyid Wulan Kristianty Growth and Development of Air and Space Law Interrelations between Human Rights and Internatio- Elisa Ruozzi nal Human Rights Law according to Separation Wall The Obligation not to Pollute: From Corollary of Sta- Case (ICJ Advisory Opinion 2004) te Sovereignty to the Right to a Decent Environment General Articles Mohamed Mowjoon Athambawa Edmon Makarim International Law Reform towards the Flood of Futu- Cyber Terrorism Prevention and Eradication in Indo- re Climate Change Refugees nesia National Law System Tommy H. Purwaka R.A. Rahadjeng Endah K.S. Paradigm Shift in the Implementation of the Law of The Inconvenient Problem of Law Enforcement in the Sea in Indonesia Indonesia in Relation to the Case of Bibit – Chandra General Articles Judhariksawan Prof. Arie Sukanti Hutagalung and Triska Sationo Exclusion of Individual Responsibility by Indonesia Consignment in Land Acquisition – Timor Leste Commssion forTruth and Friendship Yvonne Wong, PhD Odious Debts: Issues in Law and Politics
Volume 7 Number 4 – July 2010 Volume 8 Number 2 – January 2011 (BASIC PRINCIPLES ON REFUGEES) (PROGRESSIVE DEVELOPMENT OF INTERNA- TIONAL LAW PART II) Honorary Article Enny Soeprapto Honorary Article “Exclusion Clauses” of the UNHCR Statute and the Prof. Etty R. Agoes Convention Relating to the Status of Refugees Development toward the Adoption of the FAO Agree- Main Articles ment on Port State Measures to Prevent, Deter, and H. Achmad Romsan Eliminate Illegal, Unreported and Unregulated Fis- Human Rights Aspects on Cross Border Refugee Pro- hing blems Main Articles I Wayan Parthiana Kresno Buntoro Refugee and Extradition: Could a Refugee be extra- Legal and Technical Issues on Designating Archipela- dited? gic Sea Lanes Passage: Indonesia Experience Sigit Riyanto Nadia Effanie The Refoulement Principle and Its Relevance in the International Law on Marine Pollution from Ballast International Law System Water General Articles M. Ya’kub A. Kadir Uswatun Hasanah The United Nations General Assembly Resolution Human Rights in the Perspective of Islamic Law (UNGAR) As a Source of International Law Toward a Ridarson Galingging Reformulation of Sources of International Law Prosecuting Acts of Terrorism as Crimes against Hu- Mukund Thirumalai Srikanth manity under the ICC Treaty Whether “Military” and “Peaceful” Are Synonymous in Light of the Outer Space Treaty Natasha Christina Davis Wilson The Curious Case of Earth’s Survival v. the World’s Development Jose Fernando Torres Why Fragmentation of International Law Matters: The Case of Indonesia’s Bilateral Investment Trea- ty Policy and Its Impact on Its Effective Use of the WTO’s Dispute Settlement System General Articles Gemala Dewi The Evolution of the Trust System in the Mutual Fund Business in Indonesia (A Study Based on Islamic Law Perspective) Agussalim Andi Gadjong Basic Concept of Positivism in the Development of Legal Studies Volume 8 Number 3 – April 2011 Volume 9 Number 1 – October 2011 (PROGRESSIVE DEVELOPMENT OF INTERNA- (PROGRESSIVE DEVELOPMENT OF INTERNA- TIONAL LAW PART III) TIONAL LAW PART V)
Honorary Article Honorary Article Prof. Hikmahanto Juwana Prof. Etty R. Agoes The Obligation to Ensure the Conformity of Interna- Indonesia: Problems Encountered in Some Unresol- tional Treaties with the Constitution ved Boundaries and The Outermost Islands Issues Main Articles Main Articles Jamin Ginting Guy Des Rosiers Asset Recovery Principles in the United Nations Con- Once More unto the Breach: Some Thoughts on the vention Against Corruption 2003 (UNCAC 2003) to Future of the EEZ Support Corruption Eradication in Indonesia Mariana Molnar Gabor – Warokka Maya El Khoury Geographical Indications under International Intellec- Rethinking the learning of the WTO: The Unfinished tual Property law: An Indonesian Perspective Reform of the Dispute Settlement Mechanism Dina Sunyowati Arie Afriansyah Principle of Responsibilities and Sanctions in Pollu- Environmental Protection in War and State Respon- tion of the Marine Environment By Offshore Mining sibility Li Enshen Wahyu Yun Sentosa The Abuse of Guaranteed Pending Trial in the Chi- Promoting Smallholders Carbon Projects in Indonesia nese Criminal Process: A Violation of International Agis Ardiansyah Human Rights Law Standardization of Indonesia’s Islands Name as an Amira Paripurna Effort in Safeguarding the Republic of Indonesia So- The Right to a Fair Trial and Combating Terrorism: vereignty the Case of Indonesia Adhy Riady Arafah Syamsul Hadi Indonesian Air Space Liberatization towards ASEAN From Bali to Copenhagen: Indonesia’s Position and Community 2015 Role in International Negotiation to Establish a Post- General Articles Kyoto Protocol Agreement on Climate Change. Shinta Dewi General Articles Legal Analysis of Tobacco Dispute between Indone- Prof. Uswatun Hasanah sia v United States under WTO relating to National Insurance and Islamic Law Treatment Principles Wulanmas A.P.G Frederik Ajisatria Suleiman Impacts of the Implementation of Border Crossing Towards the Rational Choice Theory in the Asian Ap- Area Agreement Between Indonesia and the Philippi- proach to International Law nes at the Border of Miangas Island of North Celebes
Volume 8 Number 4 – July 2011 Volume 9 Number 2 – January 2012 (PROGRESSIVE DEVELOPMENT OF INTERNA- (VARIOUS ASPECTS OF INTERNATIONAL LAW) TIONAL LAW PART IV) Honorary Article Honorary Article Cita Citrawinda Noerhadi Prof. Mieke Komar Kantaatmadja Approaches to Trademark Infringement in ASEAN The 2001 Cape town Convention on International Countries: Analysis of How the Case is Likely to be Interests in Mobile Equipment/the Aviation Protocol Decided in Indonesia and Relevant issues in Indonesian Aviation Law Main Articles Main Articles Edmon Makarim Kresno Buntoro Online Piracy and Copyright Protection through In- Perspectives on Enhancing Safety and Security in In- ternet (A Critical Review For The Intellectual Rights donesian Waters And Obligations Balance Ade Maman Suherman Melda Kamil Ariadno Global Administrative Governance: Liberalization of Indonesian Case on Illegal Migrant Government Procurement in Third World Countries Mutiara Hikmah Patricia Audrey Ruslijanto Women’s Rights Protection in Cultural and Environ- Validity of Digital Signature as Evidence in Electro- mental Sector nic Commerce Alfitri Sobar Sutisna and Sora Lokita Legal Reform Project, Access to Justice and Gender Indonesian First Experiences in Delineating Extended Equity in Indonesia Continental Shelf Submission to the UN-CLCS General Articles Dhiana Puspitawati I.G. Agung Made Wardana Indonesia’s Archipelagic State Status: Current Deve- Access to Justice for Indigenous Peoples in Interna- lopment tional Law Nilam Andalia Kurniasari Lusita Connecting Indonesia’s Maritime Cabotage and the Counterfeiting in China: A Great Challenge in Intel- 1982 United Nations Convention on the Law of the lectual Property Protection Sea General Articles Amir Hossein Mesgari Hagh and Reza Karami The Law of Satellite Communications: Filling in the Gaps Tri Lisiani Prihatinah Legal Analysis on Interlink between International and National Instruments towards Woman Rights in Indonesia Jurnal Hukum Internasional
Volume 9 Number 3 – April 2012 Volume 10 Number 1 – October 2012 (ASEAN'S ROLE IN SUSTAINABLE DEVELOP- (ASEAN'S ROLE IN SUSTAINABLE DEVELOP- MENT I) MENT III)
Honorary Article Honorary Article Prof. Miyazaki Takashi Prof. Carole J. Petersen Global Challenges and ASEAN: Major Politico-Legal ASEAN and the Convention on the Rights of Persons Issues Facing East Asia with Disabilities: Using International Law to Promote Main Articles Social and Economic Development Leonardo Bernard Main Articles Whose Side Is It On: The Boundaries Dispute In The Prof. Agus Sardjono North Malacca Strait Culture and Intellectual Property Development in In- Armin Ibitz donesia The Impediments of Policy Coordination on E-Waste Lim Peng Han in ASEAN Creating a Sustainable Inter-City ASEAN Football M. Putra Iqbal League, Regional Television Programming Network, International Efforts to Combat Corruption and Sta- (Content/IP Industry) Sports Tourism and Travel In- tes’ Concern; a Perspective toward Indonesia-Singa- dustry and Developing Principles for a Legal Frame- pore Extradition Treaty after 5 (five) Year of Silence work to Achieve Economic and Socio-Cultural Inte- Patricia Audrey Ruslijanto and Ikaningtyas gration by 2015 What May Lead Behind ASEAN Way on Combating IGN Parikesit Widiatedja Piracy Challenge. Towards Liberalisation of Services ASEAN: Challen- General Articles ges and Opportunities of ASEAN Framework Agree- Nellyana Roesa ment on Services (AFAS) on Tourism The ASEAN Agreement on Trans-boundary Polluti- Ni Gusti Ayu Dyah Satyawati on, in relation with Indonesian Haze, Compliance in Towards a Common Agreement on Educational Co- theory and Practice.. operation on Human Rights Education in ASEAN to Cindawati Promote Human Rights Awareness for the Youth The Principle of Balance in International Business General Articles Contract Law (In Anticipation of the Free Trade Era) Natalia Yeti Puspita Human Rights Protection to Women in times of Na- tural Disasters in the Frame of ASEAN Regulations Arman Anwar Dimensions of ASEAN Cooperation in Health Deve- lopment of Southeast Asia
Volume 9 Number 4 – July 2012 Volume 10 Number 2 – Januari 2013 (ASEAN'S ROLE IN SUSTAINABLE DEVELOP- (HUMAN SECURITY) MENT II) Honorary Article Honorary Article Prof. Louis J Kotze Professor Erman Rajagukguk Re-imagining Human Rights and the Environment in Harmonization of Law in ASEAN Countries towards the Anthroposene Economic Integration Main Articles Main Articles Wasantha Seneviratne R. Panji Raditya Poernomo Responsibility of States to Protect Human Rights of Sustainable Tuna Fisheries: Indonesia Perspective Civilians in Internal War Situations: A Legal Analysis Jamin Ginting from a Human Security Perspective Roles of the mutual legal assistances and Extradition Luther Rangreji Agreements in the Assets Recovery in Indonesia Some Reflections on ‘The Future We Want’: Is the Yeni Salma Barlinti and Yetty Komalasari Dewi ‘Sustainable Development’ Paradigm as a Guarantor Should National Sharia Board be Restructured to of Ecological Security Under Serious Threat? Sustain the Development of Economic Sharia in In- Mohamed Mowjoon Atham Bawa donesia? Towards a Novel Approach Healing Language Rights Zainuddin Djafar of Minority: The Case of Sri Lanka ASEAN Competitiveness, Is Indonesia Ready Yet? General Articles Eva Johan Erna Dyah Kusumawati, Ayub Torry Satriyo Kusumo, The Protection of Domestic Industry through Safe- Sasmini guards Instrument GATT/WTO and its Implementati- Mesuji Case: Is There a Violation of Economic on on Downstream Steel Industry in Indonesia Rights: Availability of Judicial Settlement Mecha- General Articles nism on the Violation of Economic and Social Rights Wulanmas A.P.G Frederik in Indonesia After Sale Service to Imported Goods in Realizing Gemala Dewi Law Enforcement of Consumer Protection The Application of Islamic Economic Security Sy- stem for a Better Human Security in Indonesia Irsyad Dhahri S. Suhaeb Retrospectivity and Human Rights in Indonesia: How can Irregularities be Resolved
Volume 11 Number 3 April 2014 Volume 10 Number 3 – April 2013 Volume 11 Number 1 – October 2013 (HUMAN SECURITY II) (TRANSNATIONAL ORGANIZED CRIME)
Honorary Article Honorary Article: Melda Kamil Ariadno Dr. Yunus Husein, SH, LL.M. Review of Indonesia Legal Arrangement on Tuna National And International Cooperation on The Fisheries Prevention And Eradication of Money Launde- Main Articles ring Atik Krustiyati Main Articles: Ecuador’s Decision to Grant Asylum to Julian As- Aryani Sri Hartati, SH. sange: The mAnifestation of Human Security? Criminalization of the Smuggling of Migrants in Marlina Accordance with the United Nations Convention The Role of NGOs in Giving Assistance for External against Transnational Organized Crime and Protocol and Internal Refugees as a Boundary Violation of a against Sovereign State the Smuggling of Migrants by Land, Sea and Air Deni Bram Dr. Isplancius Ismail, SH, M.Hum. The Disparity in National Emissions: The Role of Analysis Towards the Urgency of Establishing Indo- National Policy to Mitigate Climate Change Free nesian Marine Law Rider to Anticipate Transnational Organized Crime Eka An Aqimuddin Dr. Mutiara Hikmah, SH, MH. International Human Rights Protection: Challenges Illegal Fishing in Indonesia from the National and to State’s Sovereignty in a Democratic Era International Law Perspectives General Articles Adi Kusumaningrum, SH, MH. Yusuf Ausiandra. S. H. The ASEAN Political-Security Community: ASEAN The Prospect of Integration through Incomplete Security Cooperation on Combatting Transnational Contracting Crimes and Transboundary Challenges General Articles: Eva Johan, SH, MH. Lesson of Implementing Non-Discrimination Prin- ciple on Indonesia-US Clove Cigarettes Case
Volume 10 Number 4 – July 2013 Volume 11 Number 2 – January 2014 (HUMAN SECURITY III) (TERRORISM)
Honorary Article Honorary Article: Prof. Mochtar Kusumaatmadja, SH, LL.M. Prof. Hikmahanto Juwana, SH, LL.M. Indonesia’s National Policy on Offshore Mineral Anti-Terrorism Efforts In Indonesia Resources: Some Legal Issues Main Articles: Main Articles: Adhy Riadhy Arafah, S.H., LL.M. Mohamed Mowjoon Atham Bawa, LL.B., LL.M., Evolution Of Terrorism Act Against Civil MBA Aircraft Human Security and the Role of National Eka Kurniasari, S.H., M.H. Human Rights Institutions in the Money Laundering: How it becomes an Enforcement of Language Rights Policy in International Threat (Response Against Sri Lanka Money Laundering from The Side of Arie Afriansyah, S.H., MIL., Ph.D. Indonesia) State Responsibility for Environmental Damage du- Siti Noor Malia, S.H., LL.M ring International Legal Issues on The Attacks Against Armed Conflict post the UNFCC Vessels in The Straits of Malacca Maskun, S.H., LL.M. Mahfud, S.H., LL.M Cyber Security and Economic and Social Rights Extra-Territorial Torture and Inhuman (ESR): Can Both Be Connected? Treatment Towards Suspected Terrorists Daniel Hendrawan, S.H., M.Hum. Committed By The U.K. And The U.S. Non-Discrimination Principle on the Agreement on Military Actions Trade-Related Investment Measures Within Coal General Articles: Mining Foreign Investment Company Dr. Eva Achjani Zulfa, S.H., M.H. General Articles: Bali Nuraga-Lampung: Identity Conflict Behind The Dr. Agus Budianto, S.H., M.Hum. Policy Corporate Crime as the Power of Crime?
Volume 11 Number 3 April 2014 Jurnal Hukum Internasional
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Volume 11 Number 3 April 2014 THE INDONESIAN JOURNAL OF INTERNATIONAL LAW (JURNAL HUKUM INTERNASIONAL)
Every article is solely opinion of the writer and does not contain any opinion from Board of Editors of IJIL. The principle of IJIL is "open to any ideas (open to all thoughts)". Each article submitted to publish shall be sent in both "hard copy" and "soft copy" to the Chief Editor, IJIL, Center for International Law Studies, Faculty of Law University of Indonesia, Kampus UI, Depok 16424, Indonesia. Script shall be written in English, with abstracts both in Bahasa Indonesia and English, 12 times new roman, single space and from 6000 – 10.000 words. Article shall be equipped by keywords, footnote, bibliography and a short CV (see Submission and Author Instruction for details). Any incomplete article will not be given to the board of editors until it meets all the above requirements. The author will be notified upon the result of editing within one month after the article is received by the Editor, please do not send the article to another publication during that time. Subscription request, ordering the previous publication (back issues), letters to the editor, and books for review, can be sent to the Indonesian Journal of International Law (ISSN 1693-5594), Center for International Law Studies, Faculty of Law University of Indonesia, Kampus UI, Depok 16424, Indonesia. IJIL is published four times a year (quarterly) in January, April, July, and October and directly delivered to permanent customers (Patrons), related stakeholders and subscribers of IJIL.
SUBSCRIPTION CRITERIA
Indonesian Journal of International Law (IJIL) could be subscribed. Subscriber should fill out the form available in later page of this journal. Non-subscriber could buy a copy of IJIL at the distributor or order directly to the editor. The subscription fee per year is : 1) In Indonesia: a) Rp.340.000,-/volume; b) Rp. 85.000/edition; c) Rp. 25.000/article (including postal and handling) and 2) Outside Indonesia: a) US$ 100/volume; b) US$ 25/edition; c) US$ 10/article (excluding postal and handling).
Copyright (c) 2013 by Center for International Law Studies. All rights reserved. All other rights are reserved. Except when otherwise expressly provided, the writers for every article in this issue can use their own article for educational use, and for any other purpose shall made it knowledgeable to the Center of International Law Studies.
Volume 11 Number 3 April 2014 Jurnal Hukum Internasional
SUBMISSIONS AND AUTHOR INSTRUCTION Indonesian Journal of International Law (IJIL)
Submissions: Articles submitted for publication should be sent to: [email protected] and [email protected]. Writers are responsible for obtaining permission to reproduce any materials, including photographs and illustrations, for which they do not hold copyright and for ensuring that the appropriate acknowledgements are included in the manuscript.
All contributions in the periodical are peer-reviewed: Authors will be asked, upon acceptance of an article, to transfer copyright of the article to the Publisher. This will ensure the widest possible dissemination of information under copyright laws. It is the responsibility of the author to obtain written permission for a quotation from unpublished material, or for all quotations in excess of 250 words in one extract or 500 words in total from any work still in copyright, and for the reprinting of figures, tables or poems from unpublished or copyrighted material. It is solely the responsibility of the author to any plagiarism contained in his/her article.
Manuscript preparation: 1. Articles should be written in English, not have been published already, nor under consideration elsewhere. Article submitted in Bahasa Indonesia will be taken into consideration for translation assistance based on the quality of the topic/substance. The translation will be done by the sworn translator with the expense of the writer. 2. Any articles containing material subject to copyright restrictions other than those owned or controlled by the contributor must be accompanied by appropriate permissions from the relevant copyright holder(s). 3. Each article should be accompanied by the following information on a separate sheet
Volume 11 Number 3 April 2014 a. the title of the article. b. the author’s name, affiliation and institutional address, together with an e-mail address. 4. Articles should be between 6.000 and 10.000 words, including text and footnotes. a. Abstract i. Abstract should be provided in English. ii. Font: Times New Roman, bold, font size: heading 10, body 8; font style: italic, alignment: justified. iii. Single line spacing on one paragraph. iv. Left indent should be 2,54 cm. v. 150-250 words. b. Keywords i. Font: Times New Roman, font size: 10, font style: italic, alignment: justified. ii. The word “Keywords” in bold and italic (e.g. Keywords:). iii. 1-10 words in lowercase. c. Body i. Font type: Times New Roman, font size: 12, line spacing: 1. ii. Write full name of the author without any qualifications. Qualifications of the author should be explained inthe footnote after the name of the author; e.g: Melda Kamil Ariadno1 (1 Lecturer of international Law, Faculty of Law, University of Indonesia. Obtained Bachelor of Law (S.H.) from University of Indonesia (1992), Master of Law (LL.M.) from University of Washington (1995), and a Doctor of Philosophy (Ph.D) from University of Washington (2011)). iii. Author name should be written in small caps, starting with capital letters, 12 font and in bold. (e.g., Melda Kamil Ariadno).
Volume 11 Number 3 April 2014 Jurnal Hukum Internasional
iv. Title should be written in capital letters, 12 font and in bold (e.g., RESPONSIBLE FISHERIES IN INTERNATIONAL LAW). v. Headings and sub-headings should be in capital letter, 12 font, and further sub-headings should be in small caps and in bold (e.g., I. INTRODUCTION; A. Current Development of International Strait). vi. Headings and sub-headings should be numbered by; First level: roman numerals in uppercase (I, II, III, …); Second level: alphabets in uppercase (A, B, C, …); Third level: arabic numerals (1, 2, 3, …); Fourth level: alphabets in lowercase (a, b, c, …); Fifth level: roman numerals in lowercase (i, ii, iii, …). vii. First line of each paragraph should be indented with single space between paragraphs. viii. The first heading should be titled “Introduction” and the last heading should be titled “Conclusion”. ix. Direct quotations: a) For direct quotation less than 20 words, it should be placed within the paragraph with quotation marks (“...... ”). b) For direct quotation contain more than 20 words, it should be in a separate paragraph with left indentation of 1,27 cm, justified, and use single line spacing. x. Footnotes should be used rather than end notes. Each time a case is referred to in the text, the case report reference should be set out in a footnote. One report reference is sufficient. References to Indonesian Law directly (in Bahasa Indonesia) should be made as follows: Indonesia. Undang-Undang tentang Peraturan Dasar Pokok Agraria. UU No. 5 Tahun 1960, LN. 1960-104. From English translation: Indonesia. Law regarding Basic Agrarian Law. Law number 5 year 1960, SG.1960-104
Volume 11 Number 3 April 2014 xi. Tables should be presented on same sheets of the article and should have short descriptive titles. Figures should be clearly numbered, source and should have explanatory captions. The author must indicate where Tables and Figures should be placed in the text. d. Footnotes and Reference Authors should provide the Footnote and Reference. Body of footnote should be written in 10 pt Times New roman and body of Reference should be written in 12 pt Times New Roman in single spacing, the heading of Reference should be written in capital letter and bold. i. Books Patricia W. Birnie and Alan E. Boyle, International Law and the Environment, Claredon Press Oxford, 1992. Birnie, Patricia W. and Alan E. Boyle, International Law and the Environment. Claredon Press Oxford. 1992. Book chapters Malgosia Fitzmaurice, “Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental Treaties” in Jan Klabbers and Rene Lefeber, eds., Essay on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag, Kluwer Law International, 1998. Fitzmaurice, Malgosia. “Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental Treaties” in Jan Klabbers and Rene Lefeber. Eds. Essay on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag. Kluwer Law International. 1998. ii. Journal articles C. Raj Kumar, “Corruption and Human Rights: Promoting Transparency in Government and the Fundamental Rights to Corruption Free Services in India”, Columbia Journal of Asian Law, vol. 17, no. 1, 2004. Kumar, C. Raj. “Corruption and Human Rights: Promoting Transparency in Government and the Fundamental
Volume 11 Number 3 April 2014 Jurnal Hukum Internasional
Rights to Corruption Free Services in India”. Columbia Journal of Asian Law. Vol. 17. No. 1. 2004. iii. Internet References […], “Background of the UNCAC”, available at: http://www. unodc.org/unodc/en/treaties/CAC/background/index.html, accessed on 21 September 2011. […]. “Background of the UNCAC”. Available at: http://www. unodc.org/unodc/en/treaties/CAC/background/index.html. Accessed on 21 September 2011. iv. Treaties Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). Vienna Convention on the Law of Treaties. 1155 UNTS 331 (opened for signature 23 May 1969, entered into force 27 January 1980). v. Legislations Japan, Immigration Control and Refugee Recognition Act, Cabinet Order No. 319 of 1951. [trans. Ministry of Justice (Japan), English Translation of Immigration Control and Refugee Recognition Act, 2009, available at < http://www.japaneselawtranslation.go.jp/law/det ail/?vm=&re=02&id=1934&lvm=01>]. Japan. Immigration Control and Refugee Recognition Act. Cabinet Order No. 319 of 1951. [trans. Ministry of Justice (Japan). English Translation of Immigration Control and Refugee Recognition Act. 2009. Available at < http://www.japaneselawtranslation.go.jp/law/det ail/?vm=&re=02&id=1934&lvm=01>]. e. Cross References i. “Ibid.” is used for two or more consecutive references to the same work. ii. For subsequent references to the same work, use the name of the author, followed by “see note 1, p. 6”.
Volume 11 Number 3 April 2014 PROFILE OF CENTER FOR INTERNATIONAL LAW STUDIES
Today the world community needs to be ready to face the rapid development of cross-border issues. The more widespread fact that national issue can develop at any time with no control into an international issue, is aware by the nations that the boundaries between national issues and international issues can no longer be separated by a rigid boundary, but is limited only by a layer of a very thin membrane. The fact has brought an important legal consequence that governs the relationship between the international communities which is known as international law.
Stimulated by the ideas above, then a group of international law lecturer at the Faculty of Law University of Indonesia founded an institution called the Center for International Law Studies (CILS). The Center aims to examine the existing problems of international law, especially the one which has implications in community life in Indonesia. Including of course analyzing the extent to which international legal provisions that have been ratified by Indonesia have been implemented effectively, and the constraints that exist in implementation. Socialization of international law becomes an agenda of this institution, given the role of international law that cannot be ignored if the countries of the world want to live in an atmosphere of mutual respect for each other interests. Broadly these institutions would want to take an active role in bridging the interests of Indonesian government and society on one side with the interests of the international community on the other side, so that they can live together in harmony.
EDITORIAL BOARD
BOARD OF SUPERVISOR: Chairman : Prof. Dr. D. Sidik Suraputra, S.H. Member : 1. Prof. Dr. Sri S. Suwardi, S.H., M.H. 2. Adijaya Yusuf, S.H., LL.M. 3. Prof. Hikmahanto Juwana, S.H., LL.M., Ph.D.
BOARD OF EXECUTIVE:
Chair/Executive Director : Melda Kamil Ariadno, S.H., LL.M., Ph.D. Vice Executive Director : Arie Afriansyah, S.H., M.I.L.,Ph.D. Executive Secretary : Fatma Muthia Kinanti, SH.
SECRETARIAT Center for International Law Studies (CILS)
Faculty of Law University of Indonesia Kampus UI Depok, Gedung C, Lantai 1, Depok 16424 Telp. (62-21) 7871617 Fax. (62-21) 7871617 e-mail: [email protected], [email protected]
Volume 11 Number 3 April 2014 Center for International Law Studies and Its Activities
Center for International Law Studies (CILS) Faculty of Law University of Indonesia was established on January 21, 2003. The Center aims to examine the problems of existing international law especially that have implications for social and state life in Indonesia, including analyzing whether international law that binds Indonesia has been implemented effectively. Based on these objectives, CILS does a lot of cooperation with various parties, including the National Development Planning Agency (Research Development Establishment in the Field of Special Court Maritime), 2003; Ministry of Environment (Review of Law and Institutional Aspects of Protocol 1996 of London Dumping Convention), 2004; Ministry of Foreign Affairs (Initial Assessment of International Agreements: The Urgency and Implementation in Indonesia), 2004; National SAR Agency (expert consultant in the preparation of the Draft Decree on Implementation Guide for the National SAR), 2004, the Coordinating Ministry for Economic Affairs (Legislation Review Anti-Dumping In connection with the General Terms Agreement on Tariff and Trade-GATT), 2004 and University of Indonesia, 2010. Other cooperation established with the Ministry of Environment, regarding the ratification of socialization plans several international treaties that the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997 and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2000. CILS also had worked with international organizations in Indonesia by involving students in a discussion with the United Nations Information Center (UNIC), which was held around December 2003. It discussed the scientific discussion about the United Nations Reform in the presence of the Director of UNIC and representatives of foreign embassies in Indonesia. Other cooperation was cooperation with the United Nations High Commissioner for Refugees (UNHCR) in the form of a scientific discussion on Refugees (Refugees) in Indonesia and the problem as well as video playback on international refugees. In June 2004, CILS had initiated the MoU between the University of Indonesia and the Indonesian Navy (TNI AL) as a legal umbrella of cooperation in the future. CILS also actively conduct expert meeting in various topic of international law by inviting international experts both academician and practitioner. In order to facilitate the course of law of the sea, LPHI conducted cooperation with the TNI AL for an academic visit to the Hydro-Oceanographic Office TNI AL and engaged students as the observer on the maritime border survey activities. Other activities including publication of books, hold seminars and training. Besides publishing Indonesian Journal of International Law (IJIL) since 2003, CILS had also published “International Law and The problem (A collection of essays)” written by Professor D. Sidik Suraputra as a reference book for teaching international law at FHUI (2004) and “Developing Country Interests Against Geographical Indication Rights, Genetic Resources, and Knowledge Traditional” which was published as a form of cooperation with Directorate General of IPR Ministry of Law and Human Rights (2005). Various seminars and discussions which were held were Seminar on “Indonesian Law Reform: Expectations and Reality” in cooperation with the LDF (2004); Workshop “Developing Country Interests in Geographical Indication Rights, Genetic Resources and Traditional Knowledge” in cooperation with Directorate General of IPR in Justice and Human Rights (2005); Expert Meeting on the RI-GAM MoU (2005); open discussion on the “Granting Asylum in the Perspective of International Law and the Future of Relations in Indonesia and Australia” in collaboration with CIRES FISIP UI (2006 ); “Advanced Symposium on WTO Law” in collaboration with Indonesia Trade Assistance Project-USAID (2007); Expert Meeting on StAR Innitiative in cooperation with Traffic Generation Forum (2007); and Experts Meeting on The Law No 24 Year 2000 in cooperation with the Directorate General of International Treaty Law and Ministry of Foreign Affairs (2007). CILS organized Training on International Legal Research for international law lecturer as well as student (2004 - present). Starting in 2010, CILS manages to hold a yearly international conference. The first CILS Conference was titled “Progressive Development in International Law” was held at Faculty of Law University of Indonesia, while the 2011 theme was “ASEAN’s Role in Sustainable Development” which was held jointly with the Faculty of Law of Universitas Gadjahmada and the theme of 2012 CILS Conference was Human Security that was jointly held with Faculty of Law Hasanuddin University. The 2013 CILS Conference was held at Faculty of Law Unsyiah University in Banda Aceh carrying theme “Transnational Organized Crime”. Through those above activities, CILS hopes to further develop studies on International Law in cooperation with national and foreign institutions. CILS is therefore ready to open a dialogue with the interested parties including how to develop the International Law Journal (IJIL) as one of the respected Journal in Indonesia that is dedicated to the development of International Law in Indonesia.