71 regulation concerning seafarer on maritime labor convention 2006 thio haikal anugerah universitas lampung, indonesia, email: thio.haikal97@gmail.com submitted: september 23, 2019; reviewed: october 14, 2019; accepted: actober 31, 2019 article info abstract keywords: protection, privacy, encryption, international, national. doi: 10.25041/lajil.v1i2.2028 the enactment of law no. 15 of 2016 which regulates seafarers results in the adoption of the convention in indonesia. the adoption of the mlc by the ilo was carried out with the aim of protecting seafarers and the shipping industry. the problem is, indonesia actually has a regulation on maritime affairs, namely in government regulation number 7 of 2000. then, in terms of whether the state of indonesia then feels the need to participate in ratifying the mlc. this then attracts the authors to examine the related arrangements regarding seafarers contained in mlc convention. therefore, the formulation of the problem in this study is how is the regulation about seafarers in the maritime labor convention, 2006? the problem approach used in this study is the statute approach. this study uses secondary data consisting of primary, secondary, and tertiary legal materials. data analysis was carried out qualitatively. the results of the study show that the framework of the maritime labor convention or mlc is composed of three parts, namely articles, regulation and codes. the arrangements for seafarers in the mlc consist of six parts, namely: seafarers’ rights; minimum requirements to work for seafarers; working conditions; accommodation, recreational facilities, food and catering; health protection, medical care, welfare and social security; compliance and enforcement. a. introduction the unitary state of the republic of indonesia is an archipelagic state characterized by an archipelago that is united by vast territorial waters with boundaries, rights, and sovereignty stipulated by law.1 as an archipelagic state with 17,4992 islands stretching from sabang to merauke, and a total area of 7.81 million km2 in which two-thirds is oceanic, it is a great opportunity for indonesians to use the sea as a source of livelihood. the sea promises the enormous commercial potential for the indonesian people. however, this potential will not be meaningful if there are no human resources as those who utilize marine potential. 1 consideration part of law no. 17 year 2008 concerning shipping. 2 https://kkp.go.id/artikel/2233-maritim-indonesia-kemewahan-yang-luar-biasa, accessed on september 10, 2018. volume 1 issue 2, 2019: pp. 71-78. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:thio.haikal97@gmail.com https://doi.org/10.25041/lajil.v1i2.2028 https://kkp.go.id/artikel/2233-maritim-indonesia-kemewahan-yang-luar-biasa regulation concerning seafarer on maritime labor convention 2006 thio haikal anugerah 72 some of the potentials of the oceans in indonesia include 3 fish resources, plants in the sea, mineral resources and mining, transportation, recreational facilities or marine tourism. one type of work that people can do by in the ocean is a seafarer. seafarers in government regulation no. 7 of 2000 concerning maritime affairs (hereinafter referred to as pp no.7 of 2000) is defined as any person who has a qualification or expertise or skill as a crew,4 the crew itself is defined as a person who works or is employed on board by a shipowner or operator to do assignments on board according to the position stated in the national seafarer’s book. 5 in 2016, the indonesian government promulgated law number 15 of 2016 concerning ratification of the maritime labor convention, 2006. the maritime labor convention or mlc is the maritime employment convention adopted at the 94th international labor conference, february 23, 2006, in geneva, switzerland. this convention focuses on the efforts of member countries of the international labor organization or the ilo to protect seafarers and the shipping industry. since adopted by the ilo in 2006 to be ratified by indonesia in 2016, there has been a span of around 10 years between 2006 and 2016 which raises the question why the indonesian government did not immediately ratify this mlc. based on the research conducted by salmah wati, this was due to at least three problems, namely:6 first, a conflict of interest between the ministry of manpower and transmigration and the ministry of transportation. second, the unpreparedness of the government and the indonesian national ship company (insa) to fulfil the provisions of the mlc. third, the government’s concern will be the emergence of a domino effect that can hinder the rate of growth in the economic sector. as explained earlier, the adoption of the mlc by the ilo was carried out to provide protection for seafarers and the shipping industry. the problem is, indonesia actually has a regulation on maritime affairs, namely in government regulation number 7 of 2000 concerning maritime affairs. then, in terms of whether the state of indonesia then feels the need to participate in ratifying the mlc. this then attracts the authors to examine the related arrangements regarding seafarers contained in mlc convention. therefore, the problem formulation in this study is how is the regulation about seafarers in the maritime labor convention, 2006? this research is classified into a type of normative legal research7 who studies the product of legislation (legal approach)8 by examining library materials or secondary data and analyzing the data carried out qualitatively. in this study, researchers used a statute approach. b. discussion 1. the concepts of seafarer the term “seafarer” can be defined as “shipboard crew personnel involving ships’ officers and seamen/ratings”.9 in this study, the scope of a seafarer has a lot of meaning but limited in the context of the seafarer as work formed through working relationships. this means seafarer who are the subjects of this study are seafarer who is bound to civil employment relationships with those who employ them. so, another seafarer who do sailing work but on their own initiative, without working relations, does not include in the meaning of seafarers in this study. the definition of a seafarer in this research refers to government regulation number 7 of 2000 concerning maritime affairs and mlc. in the pp no.7 of 2000, seafarer means as anyone who has the qualifications or skills as a crew. whereas the crew, still in the same rules, are defined as people 3 sukamto “pengelolaan potensi laut indonesia dalam spirit ekonomi islam,” jurnal ekonomi islam 9, no. 1 (2017): 35-62, 36, doi: 10.35891/ml.v9i1.881. 4 article 1 sub article 3 government regulation no. 7 year 2000 concerning maritime affair 5 article 1 sub article 2 government regulation no. 7 year 2007. 6 salmah wati “kepentingan indonesia tidak meratifikasi maritime labor convention (mlc) tahun 2006-2014,” jom fisip 1, no. 2 (2014): 1-14, 13. 7 soerjono soekanto, penelitian hukum normatif suatu tinjauan singkat (jakarta: rajawali pers, 2013) 1. 8 defi fitri et al., “aspek hukum perencanaan, pengadaan dan penempatan sumber daya manusia kesehatan di puskesmas kota metro legal aspects of planning, provision and placement of human resources in society healthy centre (puskesmas) of metro city,” cepalo 1, no. 1 (2019): 31–40, 32, doi: 10.25041/cepalo.v1no1.1753. 9 a.e. branch, d. branch (eds), dictionary of shipping. international business trade terms and abbreviations (london: witherby, 2005) 301. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 73 who work or are employed on board by the owner or operator of the ship to carry out duties on the ship according to the position listed in the national seafarer’s book,10 while on mlc, seafarer means any person who is employed or engaged or works in any capacity onboard a ship to which this convention applies. although the definitions of “seafarer” under different existing labour conventions are slightly different, the main criterion for a person to be considered as a seafarer is their work onboard a ship to which the convention applies. additionally, sometimes other criteria are mentioned (e.g., work in the deck department, entered in the ship’s articles). the content of many ilo conventions primarily speaks to the employment situation of personnel involved in some way in the operation of the ship – the “crew”.11 2. raison d’etre maritime labor convention viewed from the mlc preamble, the reason of being of this convention is intended to create a single instrument that is interrelated and wherever possible contains all the latest standards of applicable maritime labour international conventions and recommendations as well as the basic principles contained in other labor conventions. other considerations for the establishment of the mlc are also due to the global nature of the shipping industry. therefore seafarers need special protection and also pay attention to international standards regarding ship safety, humanitarian, social security and quality of shipping management, as well as training for seafarer and competence and certification. in addition, the ilo constitution which stipulates that the adoption of a convention or recommendation by a congregation or ratification by member states ensures more favourable conditions for workers.12 according to maunikum veganaden,13 mlc is a representation presented by the ilo to be a solution to various shortcomings or loopholes and grey areas in order to improve welfare, education, and social conditions for seafarers who are the main actors in the shipping industry. the adoption of this convention is intentionally intended to be applied globally, because it is easy to understand, ready for whenever to be updated and fully implemented. 3. the framework of the maritime labor convention the maritime labour convention, 2006 (mlc), otherwise known as the seafarers’ bill of rights, incorporates and builds on sixty-eight existing maritime labour conventions and recommendations, as well as more general fundamental principles, to ensure decent working and living conditions for all seafarers.14 the mlc was developed as a result of a trinity consultation by the delegates of government, employers and worker organizations. the convention aims to provide detailed rights and safeguards for seafarers and to succeed in occupational health and safety protection and prevention arrangements in their working and living areas.15 this convention consists of three parts. first, articles, second is regulations, and third is codes. articles and regulations stipulate the main rights and principles and basic obligations of member countries that ratify the convention. amendments to the articles and regulations can only be changed by the session according to the framework as set out in the ilo constitution.16 codes contain details of the application of regulations. the codes consist of part a, which must be implemented, and part b, which is optional to be implemented. amendments to the codes can be made through the procedure as stipulated in article xv mlc. 10 article 1 number 2 and 3 government regulation no. 7 year 2000. 11 sandra lielbarde, “concept of seafarer before and after the maritime labour convention 2016: comparative analysis of the legal effects of defining legal concepts in the shape of legal terminology,” rgsl research paper 17 (2017): 1-24, 5. 12 preamble of mlc, 2006. 13 maunikum veganaden, the potential implications of the maritime labor convention, 2006, for policy and management in the maritime sector: a critical analysis (sweden: world maritime university, 2007) 3. 14 the international transport workers’ federation (itf), an itf guide for seafarers to the ilo maritime labour convention (london: the international transport workers’ federation (itf), 2006) 1. 15 şevket süleyman i̇rtem, sibel bayar, güler alkanp “the implementation of maritime labour convention in the ship management: a case study on risk management on-board,” international journal of operations and logistics management 4, no. 4 (2015): 253-267, 254. 16 article xiv mlc, 2006. regulation concerning seafarer on maritime labor convention 2006 thio haikal anugerah 74 articles in the mlc consist of 16 articles, with details as follows: a. article i: general obligations; b. article ii: definitions and scope of application; c. article iii: fundamental rights and principles; d. article iv: seafarer’s employment and social rights; e. article v: implementation and enforcement responsibilities; f. article vi: regulations and parts a and parts b of the code; g. article vii: consultations with shipowners’ and seafarers’ organization; h. article viii: entry into force; i. article ix: denunciation; j. article x: effect of entry into force; k. article xi dan xii: depository functions; l. article xiii: special tripartite committee; m. article xiv: amendment of this convention; n. article xv: amendment to the code; o. article xvi: authoritative languages. article i mlc is the general obligations, containing the obligation of the parties to ratify the mlc to fully implement the mlc and cooperate in implementing and enforcing the mlc effectively. article ii mlc, berisi pengertian-pengertian yang digunakan dalam konvensi, seperti competent authority, gross tonage, etc. selain pengertian, article ini juga memuat scope of application dari mlc. article ii mlc, contains the definitions used in the convention, such as competent authority, gross tonnage, etc. this article also contains the scope of application from mlc. article iii mlc contains fundamental rights and principles contained in the mlc, namely freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, the elimination of discrimination in respect of employment and occupation. article iv mlc contains seafarer’s employment and social rights, namely: every seafarer has the right to a safe and secure workplace that complies with safety standards, every seafarer has the right to fair terms of employment, every seafarer has a right to decent working and living conditions on board ship and every seafarer has a right to health protection, medical care, welfare measures, and other forms of social protection. article v contains the obligation for member countries to implement all provisions of the convention and be responsible for ensuring that no ship is treated specifically according to this convention. article vi contains an explanation of regulations and codes. regulations contain general standards, while codes consist of two parts, code a and code b. regulations and code a are mandatory, while code b is facultative or not mandatory. article vii contains the obligation to consult with the shipowners’ and seafarers’ organizations in the event of derogation, exemption or other flexible application of this convention for which the convention requires consultation. article viii contains conditions when mlc can apply. for example, this convention is said to be valid if it has ratified 30 member countries with a total share of 33 per cent of the gross tonnage of ships in the world. article ix contains denunciation; a member who has ratified this convention may denounce it after the expiration of ten years from the date on which the convention first comes into force, by an act communicated to the director-general of the international labor office for registration. each member who does not, within the year following the expiration of the period of ten years mentioned above, exercise the right of denunciation provided for in this article, shall be bound for another period of ten years and, thereafter, may denounce this convention at the expiration of each new period of ten years under the terms provided for. article x contains the effect of applying the mlc where the implementation of this mlc convention, then each member country has revised some conventions, which are contained in this article. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 75 article xi and article xii contain the depository functions in which all ratifications, acceptances and denunciations under this convention must be notified and registered according to the provisions of this article. article xiii contains the establishment of a special tripartite committee whose duty is to safeguard and review the application of mlc provisions. article xiv contains the mechanisms and procedures that must be taken for each party who wishes to amend the mlc. article xv contains the mechanisms and procedures that must be taken to amend the codes. article xvi contains the official language used in this convention, namely english and french. regulation and codes are generally grouped into five section titles, namely: minimum requirements for seafarers to work on a ship; conditions of employment; accomodation, recreational facilities, food and catering; health protection, medical care, welfare and social security protection; compliance and enforcement. 4. the regulation concerning seafarer on maritime labor convention, 2006 regulations concerning seafarer on mlc are generally grouped into six section titles, namely: seafarer’s right; minimum requirements for seafarers to work on a ship; conditions of employment; accommodation, recreational facilities, food and catering; health protection, medical care, welfare and social security protection; compliance and enforcement. seafarer’s rights on mlc are divided into two types. the first form is fundamental rights, meaning that must be respected, guaranteed and fulfilled by every party involved in the scope of the convention, which includes: a. freedom of association and the effective recognition of the right to collective bargaining; b. the elimination of all forms of forced or compulsory labour; c. the effective abolition of child labour; and d. the elimination of discrimination in respect of employment and occupation. the second type is seafarer’s social rights and their rights as a worker, which consists of:17 a. every seafarer has the right to a safe and secure workplace that complies with safety standards; b. every seafarer has the right to fair terms of employment; c. every seafarer has a right to decent working and living conditions on board ship; d. every seafarer has a right to health protection, medical care, welfare measures, and other forms of social protection. regarding the requirements for seafarer to work on ships. four minimum aspects must be met by seafarers who want to work on a ship in mlc. first, regarding the minimum age allowed to work as a seafarer. second, regarding medical certificates that must be owned by seafarers as proof that he is physically fit to work on a ship. third, training and qualifications regarding the competency of the seafarer. and finally, the recruitment and placement of seafarer themselves.18 in the part of the conditions of work regulated on mlc, there are at least eight aspects which are the focus, that is: seafarers’ employment agreements; wages; hours of work and hours of rest; entitlement to leave; repatriation; seafarer compensation for the ship’s loss or foundering; manning levels; career and skills development and opportunities for seafarers’ employment. accommodation, recreational facilities, food and catering, are the third aspects that are integrally regulated in the rules and rules of mlc. to ensure seafarers have adequate accommodation and recreational facilities onboard, each member country must ensure that the country’s flagged ships provide adequate accommodation and recreational facilities for seafarers on board.19 regarding the description of the accommodation and what facilities should be provided to seafarers are regulated at the codes. regarding medical care on ships and on land, in order to protect the health of seafarers and ensure rapid access, each member country must ensure that all seafarers on the ship with the flag of their country are protected by appropriate policies to protect their health. therefore member countries 17 article iv, mlc 2006. 18 title 1, regulation and codes, mlc. 19 regulation 3.1. mlc. regulation concerning seafarer on maritime labor convention 2006 thio haikal anugerah 76 need to ensure that there is access to prompt and adequate medical care when seafarers work on ships. protection and care in principle is an obligation and access to it must be free of charge. in the last section, namely compliance and enforcement, it is stipulated that each members of mlc is responsible for fully implementing and enforcing the principles and rights set out in the articles of mlc and special obligations regarding: minimum requirements for seafarers to work on a ship; conditions of employment; accommodation, recreational facilities, food and catering; health protection, medical care, welfare and social security protection c. conclusion seafarer refers to government regulation number 7 of 2000 concerning maritime affairs is anyone who has the qualifications or skills as a crew. whereas the crew, still in the same rules, are defined as people who work or are employed on board by the owner or operator of the ship to carry out duties on the ship according to the position listed in the national seafarer’s book. mlc define seafarer is any person who is employed or engaged or works in any capacity on board a ship to which this convention applies. the framework of the maritime labor convention or mlc is composed of three parts, namely articles, regulation and codes. the arrangements for seafarers in the mlc consist of six parts, namely: seafarers’ rights; minimum requirements to work for seafarers; working conditions; accommodation, recreational facilities, food and catering; health protection, medical care, welfare and social security; compliance and enforcement. references a. journal fitri, defi et al., “aspek hukum perencanaan, pengadaan dan penempatan sumber daya manusia kesehatan di puskesmas kota metro legal aspects of planning, provision and placement of human resources in society healthy centre (puskesmas) of metro city,” cepalo 1, no. 1, 2019: 31–40, doi: 10.25041/cepalo.v1no1.1753. lielbarde, sandra. “concept of seafarer before and after the maritime labour convention 2016: comparative analysis of the legal effects of defining legal concepts in the shape of legal terminology.” rgsl research paper 17, 2017: 1-24. salmah, wati “kepentingan indonesia tidak meratifikasi maritime labor convention (mlc) tahun 2006-2014.” jom fisip 1, no. 2, 2014: 1-14. şevket süleyman i̇rtem, sibel bayar, güler alkanp. “the implementation of maritime labour convention in the ship management: a case study on risk management on-board.” international journal of operations and logistics management 4, no. 4, 2015: 253-267. sukamto. “pengelolaan potensi laut indonesia dalam spirit ekonomi islam.” jurnal ekonomi islam 9, no. 1, 2017: 35-62, doi: 10.35891/ml.v9i1.881. b. book branch, a. e. dictionary of shipping. international business trade terms and abbreviations. london: witherby, 2005. maunikum, veganaden. the potential implications of the maritime labor convention, 2006, for policy and management in the maritime sector: a critical analysis. sweden: world maritime university, 2007. soerjono, soekanto. penelitian hukum normatif suatu tinjauan singkat. jakarta: rajawali pers, 2013. the international transport workers’ federation (itf). an itf guide for seafarers to the ilo maritime labour convention. london: the international transport workers’ federation (itf), 2006. c. regulation government regulation no. 7 year 2000 concerning maritime affair lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 77 law no. 17 year 2008 concerning shipping. maritime labor convention, 2006 d. internet https://kkp.go.id/artikel/2233-maritim-indonesia-kemewahan-yang-luar-biasa, accessed on september 10, 2018. https://kkp.go.id/artikel/2233-maritim-indonesia-kemewahan-yang-luar-biasa regulation concerning seafarer on maritime labor convention 2006 thio haikal anugerah 78 1 internet access restrictions in papua; government policy and press freedom violations dimas zakaria1, danang faturrachman dwicahyo2 1universitas lampung, indonesia, e-mail: dimaszakaria42@gmail.com 2universitas lampung, indonesia, e-mail: danangfd209@gmail.com submitted: january 1, 2021; reviewed: february 10, 2021; accepted: february 18, 2021 article info abstract keywords: internet restrictions, violations, press freedom. doi: 10.25041/lajil.v4i1.2104 this research explores how internet access restrictions lead to press freedom violations and how national and international law view restrictions on internet access in the status quo. this research is a normative juridical study analyzed using descriptive-analytical methods, then conveyed using a descriptive-analytical approach to make it easier to conclude. these research findings show that refers to both international law and positive indonesian law, the government's efforts to prevent the spread of fake news and incitement are correct. still, the government's policies to restrict internet access in papua and west papua are wrong because they have recorded procedures and are against the law. this research concludes that the hate speech that occurred in surabaya against papuan students has resulted in riots in papua and west papua. in dealing with the spread of fake news and incitement related to this incident, the government has committed violations of press freedom because the indonesian government's efforts are procedural and contrary to national or international law. a. introduction as a democratic country, press freedom is an essential part of creating openness and transparency, which are the pillars of democracy and law enforcement.1 the internet has provided real developments in journalism.2 the internet has made changes in the development of the reception and distribution of information, news, and all incidents.3 the incident of the destruction of the red and white flag at the kamasan dormitory, made several elements of the 1 vivi ariyanti, “kebebasan pers dalam perspektif peradilan pidana”, jurnal dakwah dan komunikasi 4, no.1 (2010): 1-13, 1. doi: 10.24090/komunika.v4i1.134. 2 muslimin m, “perkembangan teknologi dalam industri media”, jurnal teknik industri 12, no. 1 (2011): 57-64, 61, doi: 10.22219/jtiumm.vol12.no1.57-64. 3 febi trafena talika, “manfaat internet sebagai media komunikasi bagi remaja di desa air mangga kecamatan laiwui kabupaten halmahera selatan”, e-journal “acta diurna” 5, no. 1 (2016): 1-6, 1. volume 4 issue 1, january-june 2022: pp. 1-8. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil https://doi.org/10.24090/komunika.v4i1.134 https://doi.org/10.22219/jtiumm.vol12.no1.57-64 internet access restrictions in papua; government policy … dimas z, danang f 2 community and the tni commit racial acts against papuan students residing there.4 this racial act has led several regions in indonesia to take sympathetic actions and condemn the action. some of the areas that happen similar actions were jayapura, fakfak, manokwari, and timika.5 the action was chaotic and led to the destruction and burning of public facilities.6 to minimize the spread of fake news and provocation, the government did some actions and restrictions on internet access in papua and papua regions.7 the ministry of communication and informatics, at least as of monday, august 19 2019 has found the spread of fake news in the form of a photo papuan student beaten to death by authorities in surabaya and kidnapping news two people for papuan students by the surabaya police who spread on social media. the restrictions are based on press release no.154/hm/kominfo/08/2019 related access retardation in several regions of west papua and papua on monday, 19 august 2019. it was noted that internet access restrictions in these areas took place from 13.00 wit to 20.30 wit.8 several parties joined in the alliance of independent journalists, and the south east asia freedom of expression network (safenet) filed a lawsuit against president joko widodo and the ministry of communication and information of the republic of indonesia on thursday, november 21, 2019.9 the lawsuit resulted from policy throttling the slowdown in access/bandwidth has resulted in losses for press and broadcasting activities in papua and west papua.10 the jakarta state administrative court on june 3, 2020, granted the applicant's petition and declared that defendant i (minister of communication and information of the republic of indonesia) and defendant ii (president joko widodo) were guilty of the policy of restricting internet access.11 when viewed from the government's reasons for taking measures to restrict internet access in the region to prevent riots, the spread of fake news that could have implications for security stability, this is justified. in article 28j paragraph (2) of the 1945 constitution, the rights exercised can be limited because the limitation is for creating security and public order in a democratic society. this research will look at the perspective of positive indonesian law and international law comprehensively whether there is a violation of press freedom in the policy of restricting internet access in papua and west papua. therefore the formulation of the problem that will be used in this study is how do the restriction on internet access be seen as an effort to protect the state sovereignty and how do national and international law view restrictions on internet access in a status quo. 4bbc news indonesia, “asrama papua: cek fakta kasus bendera merah putih dan makian rasialisme di surabaya”, may, 1, 2020. https://www.bbc.com/indonesia/indonesia-49446765. 5kompas.com, “kerusuhan di papua, apa yang terjadi di manokwari hingga jayapura?”, may, 1, 2020. available online https://www.kompas.com/tren/read/2019/08/29/183000065/kerusuhan-di-papua-apa-yang-terjadi-dimanokwari-hingga-jayapura-. 6kompas.com, “ini kronologi demo di jayapura yang berubah jadi kerusuhan”, may, 1, 2020. available online https://regional.kompas.com/read/2019/08/29/17525601/ini-kronologi-demo-di-jayapura-yang-berubah-jadikerusuhan. 7pusat penelitian badan keahlian dpr ri, “pembatasan internet dalam mengatasi konflik di papua”, may, 1, 2020. available online https://berkas.dpr.go.id/puslit/files/info_singkat/info%20singkat-xi-17-i-p3diseptember-2019-1946.pdf. 8press release no. 154 / hm / kominfo / 08/2019. 9suara.com, “presiden jokowi digugat ke pengadilan, kasus blokir internet papua”, may, 2, 2020. available online https://www.suara.com/news/2019/11/21/192615/presiden-jokowi-digugat-ke-pengadilan-kasus-blokirinternet-papua. 10see "in the main case / posita", decision number: 230 / g / tf / 2019 / ptun-jkt. p. 18. 11see in “adjudicating”, decision number: 230 / g / tf / 2019 / ptun-jkt. p. 278. https://www.kominfo.go.id/content/detail/20783/hoaks-foto-mahasiswa-papua-tewas-dipukul-aparat-di-surabaya/0/laporan_isu_hoaks https://www.kominfo.go.id/content/detail/20784/hoaks-polres-surabaya-menculik-dua-orang-pengantar-makanan-untuk-mahasiswa-papua/0/laporan_isu_hoaks https://www.suara.com/tag/aliansi-jurnalis-independen https://www.bbc.com/indonesia/indonesia-49446765 https://www.kompas.com/tren/read/2019/08/29/183000065/kerusuhan-di-papua-apa-yang-terjadi-di-manokwari-hingga-jayapurahttps://www.kompas.com/tren/read/2019/08/29/183000065/kerusuhan-di-papua-apa-yang-terjadi-di-manokwari-hingga-jayapurahttps://regional.kompas.com/read/2019/08/29/17525601/ini-kronologi-demo-di-jayapura-yang-berubah-jadi-kerusuhan https://regional.kompas.com/read/2019/08/29/17525601/ini-kronologi-demo-di-jayapura-yang-berubah-jadi-kerusuhan https://www.suara.com/news/2019/11/21/192615/presiden-jokowi-digugat-ke-pengadilan-kasus-blokir-internet-papua https://www.suara.com/news/2019/11/21/192615/presiden-jokowi-digugat-ke-pengadilan-kasus-blokir-internet-papua lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 3 this research is a normative juridical study, which discusses legal principles, legal systematics, and legal comparisons. 12 according to the policy of restricting internet access in the papua and west papua regions by the indonesian government which is based on ministry press release communications and information technology of the republic of indonesia no.154/hm/kominfo/08/2019. the data source is secondary data consisting of primary legal materials such as international covenant on civil and political rights, universal declaration of human rights, 1945 constitution, law on ite, law on press, press release ministry communications and information technology of the republic of indonesia no.154/hm/kominfo/08/2019. secondary sources of law used in this study come from literature such as; journals, books, and previous research. for tertiary legal materials, come from articles and news relevant to this research. the data collection method is a literature study through reading, collecting, and writing activities. data processing is implemented through a data selection process, data classification and data systematization. this study was analyzed using qualitative analysis methods conveyed through descriptive-analytical methods to facilitate the delivery and drawing of conclusions. b. discussion 1. aji and safenet's reasons for alleged violations of press freedom due to policies on restricting internet access in papua and west papua regions. a sovereign state has sovereignty that must be protected from anything that has the potential to interfere with the existence and state life viability.13 efforts to maintain sovereignty will be sustainable in an effort to ensure the safety of the community and the whole nation.14 in current conditions, threats to the sovereignty are not only focused on military threats, but also nonmilitary threats.15 non-military threats include hoaxes and hate speech.16 in the case of the restriction on internet access in papua and west papua regions, the indonesian government did this as an excuse to preventing hoaxes and hate speech from the riots that occurred in the region.17 this effort is accorded to the concept in the 1945 constitution that declared that the state protects the indonesian people and all of indonesia’s sacrifices.18 protection of the indonesian people and all of the indonesia’s sacifices, in this case, refers to the fact that hoaxes and hate speech are feared to trigger emotions from papua people.19 especially in that time the papuan people were annoyed by the army of indonesia (tni) 12 depri liber sonata, “metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum”, fiat justisia: jurnal ilmu hukum 8, no. 1 (2014): 15-35, 25, doi: 10.25041/fiatjustisia.v8no1.283. 13 herman, “bestuurszorg pemerintah dalam negara hukum indonesia”, jurnal esensi hukum 1, no. 1 (2019): 1-11, 1-2, doi: 10.35586/esensihukum.v1i1.6. 14 nurul atik, afrizal, “upaya pemerintah indonesia dalam menjaga wilayah perbatasan indonesia-vietnam tahun (2010-2014)”, jom fisip 4, no. 1 (2017): 1-12, 2 . 15 jerry indrawan, “ancaman non-militer terhadap keamanan nasional di papua”, jurnal ilmiah hubungan internasional 12, no. 2 (2016): 1-15, 10, doi: 10.26593/jihi.v12i2.2651.159-173. 16 gerald theodorus l. toruan, “tinjauan yuridis kebijakan bela negara kemhan dalam perspektif hukum indonesia”, jurnal esensi hukum 1, no. 1 (2019): 70-80, 70-71, doi: 10.35586/esensihukum.v1i1.16. 17 https://news.detik.com/berita/d-4672323/cegah-hoax-kominfo-sempat-lambatkan-internet-di-papua, accessed on april 19, 2020. 18 ade fartini, “hukum dan fungsi negara menurut undang-undang dasar negara republik indonesia tahun 1945”, al ahkam 14, no. 1 (2018): 1-19, 12, doi: 10.37035/ajh.v14i1.1427. 19 https://nasional.kompas.com/read/2019/08/23/07172221/pembatasan-akses-internet-di-papua-tujuan-muliayang-tuai-pro-dan-kontra?page=all, accessed on april 20, 2020. https://doi.org/10.25041/fiatjustisia.v8no1.283 https://doi.org/10.35586/esensihukum.v1i1.6 12,%20no.%202%20(2016) https://doi.org/10.26593/jihi.v12i2.2651.159-173 https://doi.org/10.35586/esensihukum.v1i1.16 https://news.detik.com/berita/d-4672323/cegah-hoax-kominfo-sempat-lambatkan-internet-di-papua http://dx.doi.org/10.37035/ajh.v14i1.1427 https://nasional.kompas.com/read/2019/08/23/07172221/pembatasan-akses-internet-di-papua-tujuan-mulia-yang-tuai-pro-dan-kontra?page=all https://nasional.kompas.com/read/2019/08/23/07172221/pembatasan-akses-internet-di-papua-tujuan-mulia-yang-tuai-pro-dan-kontra?page=all internet access restrictions in papua; government policy … dimas z, danang f 4 personnel who committed acts of racism against some papuan students in surabaya.20 if this thing is ignored, it will trigger a wider conflict. it is feared that this conflict may cause the disintegration of the nation.21 as we all know that separatist groups in papua who want papua to be independent and separate themselves from indonesia were still exist.22 this thing must be avoided, and according to that the indonesian government was restricting internet access. 2. restrictions on internet access in a status quo under national and international law. protection of human rights for citizens by the rule of law is the main thing.23 article 19 the universal declaration of human rights states that freedom of opinion and expression is the right of every person, including the right to seek, receive, and convey information without any restrictions through any media, including the internet.24 the un also stated that internet rights are human right which is often referred to as digital right.25but, in exercising rights, each is limited by the rights of others.26 the 1945 constitution itself in article 28 j paragraph (2) states that restrictions on the rights and freedoms of everyone's rights must pay attention to and consider the values of religion, morals, security, and public order.27 judging from the rules of article 40 paragraph (2), paragraph (2a), and paragraph (2b) of law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning electronic information and transactions (ite law) is the government's obligation to prevent disruption to the public interest due to misuse of electronic information and electronic transactions.28 restrictions imposed by the republic of indonesia's government on internet access in the papua and west papua regions on the grounds of preventing the spread of fake news and widespread riots can be said to be true. restrictions on internet access by the government in the papua and west papua regions to prevent hatred based on sara are following article 20 paragraph (2) of the international covenant on civil and political rights.29 according to article 4 of the international covenant on civil and political rights, it must be remembered that in understanding human rights, it must be due to the state's condition in an emergency and must be declared officially. this emergency through a presidential decree.30 this kind of condition by the european court of human rights is defined as a state of 20 https://www.voaindonesia.com/a/luapan-protes-mahasiswa-papua-atas-tindakan-diskriminasi-danrasisme/5048270.html, accessed on april, 20, 2020. 21 muhammad sholeh, nur rohim yunus, ida susilowati, “resolusi konflik pencegahan disintegrasi bangsa melalui legalitas hukum syariat di aceh”, salam 3, no. 2 (2016): 217-230, 218, doi: 10.15408/sjsbs.v3i3.7862. 22 georgy mishael, joko setiyono, soekotjo hardiwinoto, “kebijakan operasi militer tentara nasional indonesia terhadap organisasi papua merdeka dalam perspektif hukum humaniter internasional”, diponegoro law review 5, no. 2 (2016): 1-12, 2. 23 putu eva ditayani antari, “tinjauan yuridis pembatasan kebebasan berpendapat pada media sosial di indonesia”, jurnal hukum undiknas 4, no. 1 (2017): 15-28, 16. 24 latipah nasution, “hak kebebasan berpendapat dan berekspresi dalam ruang publik di era digital”, adalah 4, no. 3 (2020): 37-48, 44, doi: 10.15408/adalah.v4i3.16200. 25 see in the main case, decision number: 230 / g / tf / 2019 / ptun-jkt, 167. 26 osgar s. matompo, “pembatasan terhadap hak asasi manusia dalam prespektif keadaan darurat”, jurnal media hukum 21, no. 1 (2014): 57-72, 58. 27 arief rianto kurniawan, yuliana primawardani, “proporsionalitas pembatasan ham dalam pasal 28 undangundang pemberantasan tindak pidana terorisme”, jurnal legislasi indonesia 16, no. 1 (2019): 16-26, 17. 28 article 40 paragraph (2), (2a), (2b) law number 19 year 2016. 29 article 20 paragraph (2) of the international covenant on civil and political rights. 30 fadillah agus, “pembatasan ham dalam keadaan darurat menurut peraturan perundang-undangan indonesia”, jurnal paradigma hukum pembangunan 3, no. 2 (2018): 105-114, 108. https://www.voaindonesia.com/a/luapan-protes-mahasiswa-papua-atas-tindakan-diskriminasi-dan-rasisme/5048270.html https://www.voaindonesia.com/a/luapan-protes-mahasiswa-papua-atas-tindakan-diskriminasi-dan-rasisme/5048270.html https://doi.org/10.15408/sjsbs.v3i3.7862 https://doi.org/10.15408/adalah.v4i3.16200 21,%20no.%201%20(2014) lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 5 emergency or crisis that is extraordinary, affecting society's overall condition and posing a threat to life.31 judging from the conditions in papua and west papua, it can be said that an emergency condition allows the limitation of human rights, but if seen from the legal procedure it is not fulfilled because there is no presidential decree or the like which states that there is an emergency condition in papua and west papua. legal violations committed by the indonesian government due to article 40 paragraph (2b) of the ite law, the efforts that the indonesian government can make to overcome the spread of fake news, incitement, and other things that disturb public order can only be made by cutting off access to documents. electronics which are considered to have contents that are against the law.32 this has a domino effect in the form of a violation of article 4 paragraph (3) of law number 40 of 1999 concerning the press, which states that there is a guarantee for press freedom to seek, obtain and disseminate information and ideas to the general public.33 based on the decision of the state administrative court number: 230 / g / tf / 2019 / ptun-jkt, the minister of communication and information technology and the president of the republic of indonesia were found guilty of restricting internet access in the papua and west papua regions.34 c. conclusions through press release no. 154 / hm / kominfo / 08/2019, the government of the republic of indonesia has made policies to restrict internet access in the papua and west papua regions to prevent fake news and incitement related to unrest in the region. aji and safenet consider this policy to cause losses in the production of journalistic works, and this policy is against the law. according to international law and indonesian national law, the limitation of rights is justified if the restriction aims to prevent riots and disturbing security and order. papua and west papua's situation allows for restrictions on rights, in this case, restrictions on internet access. unfortunately, this policy is flawed in the procedure because it is not under applicable regulations. after all, the indonesian government did not declare an emergency through a presidential decree or the like, and the government's policy to restrict internet access in papua and west papua is not justified according to article 40 paragraph (2b) of the ite law because in that article it is explained that to prevent its spread fake news and content that is against the law is only allowed to terminate access to electronic documents and to terminate access to electronic documents. based on the verdict as well as government policies restricting internet access in papua and west papua regions are not justified according to article 40 paragraph (2b) of the ite law because in that article it is explained that to prevent the spread of fake news and content that is against the law only to terminate access to electronic documents and termination of access to these electronic documents. based on the verdict as well as government policies restricting internet access in papua and west papua regions are not justified according to article 40 paragraph (2b) of the ite law because in that article it is explained that to prevent the spread of fake news and content that is against the law only to terminate access to electronic documents terminating access to these electronic documents. based on the verdictstate administrative court number: 230 / g / tf / 2019 / ptun-jkt, those who have legal force continue to say that the government's actions in the quo case are wrong and contrary to the law. 31 nihal jayawickrama, the judicial application of human rights law national, regional and international jurisprudence (cambridge university press, yr. 2002), 205. 32 article 40 paragraph (2b) of law number 19 year 2016. 33 article 4 paragraph (3) of law number 40 of 1999. 34see in adjudication, decision number: 230 / g / tf / 2019 / ptun-jkt, 278-278. internet access restrictions in papua; government policy … dimas z, danang f 6 references a. journal agus, fadillah. “pembatasan ham dalam keadaan darurat menurut peraturan perundang-undangan indonesia”, jurnal paradigma hukum pembangunan 3, no. 2, 2018: 105-114. antari, putu eva ditayani. “tinjauan yuridis pembatasan kebebasan berpendapat pada media sosial di indonesia”, jurnal hukum undiknas 4, no. 1, 2017: 15-28. ariyanti, vivi. “kebebasan pers dalam perspektif peradilan pidana”, jurnal dakwah dan komunikasi 4, no. 1, 2010: 1-13, doi 10.24090/komunika.v4i1.134. atik, nurul afrizal. “upaya pemerintah indonesia dalam menjaga wilayah perbatasan indonesia-vietnam tahun (2010-2014)”, jom fisip 4, no. 1, 2017: 1-12. fartini, ade.“hukum dan fungsi negara menurut undang-undang dasar negara republik indonesia tahun 1945”, al ahkam 14, no. 1, 2018: 1-19, doi: 10.37035/ajh.v14i1.1427. herman. “bestuurszorg pemerintah dalam negara hukum indonesia”, jurnal esensi hukum 1, no. 1, 2019: 1-11, doi: 10.35586/esensihukum.v1i1.6. indrawan, jerry. “ancaman non-militer terhadap keamanan nasional di papua”, jurnal ilmiah hubungan internasional 12, no. 2, 2016): 1-15, doi: 10.26593/jihi.v12i2.2651.159-173. m, muslimin. “perkembangan teknologi dalam industri media”, jurnal teknik industri 12, no. 1, 2011: 57-64, doi: 10.22219/jtiumm.vol12.no1.57-64. matompo, osgar s. “pembatasan terhadap hak asasi manusia dalam prespektif keadaan darurat”, jurnal media hukum 21, no. 1, 2014: 57-72. mishael, georgy., setiyono, joko., hardiwinoto, soekotjo. “kebijakan operasi militer tentara nasional indonesia terhadap organisasi papua merdeka dalam perspektif hukum humaniter internasional”, diponegoro law review 5, no. 2, 2016: 2. 1-12. nasution, latipah. “hak kebebasan berpendapat dan berekspresi dalam ruang publik di era digital”, adalah 4 no. 3, 2020: 37-48, doi: 10.15408/adalah.v4i3.16200. rianto, kurniawan arief., primawardani, yuliana. “proporsionalitas pembatasan ham dalam pasal 28 undangundang pemberantasan tindak pidana terorisme”, jurnal legislasi indonesia 16, no. 1, 2019: 16-26. sholeh, muhammad., yunus, nur rohim., susilowati, ida. “resolusi konflik pencegahan disintegrasi bangsa melalui legalitas hukum syariat di aceh”, salam 3, no. 2, 2016: 217-230, doi: 10.15408/sjsbs.v3i3.7862. sonata, depri liber. ” metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum”, fiat justisia jurnal ilmu hukum 8, no. 1, 2014: 15-35, doi: 10.25041/fiatjustisia.v8no1.283. talika, febi trafena. “manfaat internet sebagai media komunikasi bagi remaja di desa air mangga kecamatan laiwui kabupaten halmahera selatan”, e-journal “acta diurna” 5, no. 1, 2016: 1-6. toruan, gerald theodorus l. “tinjauan yuridis kebijakan bela negara kemhan dalam perspektif hukum indonesia”, jurnal esensi hukum 1, no. 1, 2019: 70-80, doi: 10.35586/esensihukum.v1i1.16. https://doi.org/10.24090/komunika.v4i1.134 http://dx.doi.org/10.37035/ajh.v14i1.1427 https://doi.org/10.35586/esensihukum.v1i1.6 https://doi.org/10.26593/jihi.v12i2.2651.159-173 lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 7 b. book jayawickrama, nihal. the judicial application of human rights law national, regional and international jurisprudence. cambridge university press, 2002. c. regulation decision number: 230 / g / tf / 2019 / ptun-jkt. law number 19 of 2016 concerning information and electronic transaction. law number 40 of 1999 concerning pers. press release no. 154 / hm / kominfo / 08/2019. the international covenant on civil and political rights d. internet https://www.bbc.com/indonesia/indonesia-49446765, accessed on may 1, 2020. https://news.detik.com/berita/d-4672323/cegah-hoax-kominfo-sempat-lambatkan-internet-dipapua, accessed on april 19, 2020. 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https://news.detik.com/berita/d-4672323/cegah-hoax-kominfo-sempat-lambatkan-internet-di-papua https://regional.kompas.com/read/2019/08/29/17525601/ini-kronologi-demo-di-jayapura-yang-berubah-jadi-kerusuhan https://regional.kompas.com/read/2019/08/29/17525601/ini-kronologi-demo-di-jayapura-yang-berubah-jadi-kerusuhan https://www.kompas.com/tren/read/2019/08/29/183000065/kerusuhan-di-papua-apa-yang-terjadi-di-manokwari-hingga-jayapurahttps://www.kompas.com/tren/read/2019/08/29/183000065/kerusuhan-di-papua-apa-yang-terjadi-di-manokwari-hingga-jayapurahttps://berkas.dpr.go.id/puslit/files/info_singkat/info%20singkat-xi-17-i-p3di-september-2019-1946.pdf https://berkas.dpr.go.id/puslit/files/info_singkat/info%20singkat-xi-17-i-p3di-september-2019-1946.pdf https://www.suara.com/news/2019/11/21/192615/presiden-jokowi-digugat-ke-pengadilan-kasus-blokir-internet-papua https://www.suara.com/news/2019/11/21/192615/presiden-jokowi-digugat-ke-pengadilan-kasus-blokir-internet-papua internet access restrictions in papua; government policy … dimas z, danang f 8 121 indonesia as non-permanent member of united nations security council, guarding the peace and stability in asean afandi sitamala departement of international law, universitas sultan ageng tirtayasa, indonesia, email: asitamala@untirta.ac.id submitted: july 30, 2020; reviewed: august 26, 2020; accepted: september 16, 2020 article info abstract keywords: asean, role, nonpermanent, unsc doi: 10.25041/lajil.v2i2.2037 the overall objective underlying the establishment of the un security council was to “save succeeding generations from the scourge of war” (preamble to the un charter) which used as the official campaign by the indonesia foreign ministry, indonesia stated itself as ‘a true partner for world peace’. by that, indonesia expresses the gravity of its membership by aiming towards ascertaining collaborations between the regional organizations in maintaining stability in the regional area (asean). indonesia’s goals for bridging unsc hegemony on the global level and bringing the stability of the asean area is going to be effortful. the challenge of establishing the un resolution as a legal instrument in municipal law becomes one of the biggest challenges. the two years of tenure also grow into a barrier toward indonesian contributions. this study aims to analyze indonesia role as the non-permanent member of unsc globally and in the asean region. the final results were presented in a descriptive manner, which gives an overview of how indonesia’s role in the unsc, and how indonesia’s aimed toward synergized asean. a. introduction the united nations (un) remains the only institution where almost all countries, whether friendly or hostile, carry out communication, discussion, and open debate either openly or closely. it can be understood that the main reason for many countries flocking to become members of the un is as an institution of the largest international organization, the un plays an important role in global issues that occur at this time. the un is also an international symbol of hope for world peace and security through global cooperation, dialogue, and response to threats to security and peace.1 one of the bodies in the united nations is the security council. the security council is the main body of the united nations consisting of the united states, britain, france, the soviet union and china as permanent members of the security council. 1 jean e. krasno, founding the united nations: an evolutionary process, a book chapter in jean e. krasno (ed), the united nations: confronting the challenges of a global society (london: lynne rienner, 2004), 19. volume 2 issue 2, 2020: pp. 121-128. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:asitamala@untirta.ac.id https://doi.org/10.25041/lajil.v2i2.2037 indonesia as non-permanent member of united nations security council, … afandi sitamala 122 the security council has a special task in the field of international peace and security where these five countries have a role in the fight against fascism.2 on june 8, 2018, indonesia was elected a non-permanent member of the un security council (unsc) from 2019 to 2020, along with germany, south africa, belgium, and the dominican republic. indonesia will start its term of office on january 1, 2019, until december 31, 2020. 3 the membership of the indonesian unsc is the fourth time after previously indonesia became a non-permanent member of the unsc in 1974-1975, 1995-1996, and 20072008. on the fourth time of its membership, indonesia carries four priority issues and one issue of special attention, namely: first, to continue the contribution of the government of indonesia in its efforts to realize world peace, second build synergies between regional organizations, third increase cooperation between countries and the unsc to combating terrorism, extremism and radicalism, the fourth synergize efforts to create peace with sustainable development efforts. as for the issue of special attention is regarding palestine.4 the election of indonesia as a non-permanent member of the unsc has placed indonesia in the epicentre of decision making at the global level.5 one of the challenges faced by indonesia in its two-year tenure of membership is to become a regional power that can be a link between the region and the agenda of the unsc. some of the researcher’s views on the unsc and the region (max planck: 2000) see sooner or later the credibility of the unsc can collapse if there is no “underrepresented” representation of the voices of countries outside the permanent members of the unsc.6 (david freestone: 2002) explained that the international legal action in the framework of protection against the threat of transnational terrorism requires cooperation from every country (area).7 meanwhile, (erika de wet: 2004), explained that the understanding of the areas/regions in chapter viii of the un charter must be separated from defence organizations, whose main purpose is to offer protection against military aggression. the defence is regulated explicitly by article 51 of the un charter.8 2 desia rakhma banjarani et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1 (2019): 11–18, 16, doi: 10.25041/cepalo.v3no1.1789. 3 https://kemlu.go.id/portal/id/page/42/keanggotaan_indonesia_pada_dk_pbb, accessed on july 8, 2019, 23. 30. 4 indonesia campaign pamphlet by the ministry of foreign affairs indonesia, ‘indonesia a true partner for world peace’ 2nd edition, march 2017 5 ricky suhendar director of law and treaty the ministry of foreign affairs indonesia stated “the status of indonesia as a non-permanent member of the united nations security council had placed indonesia in the epicenter of decision making at the global level...” as can be seen on https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrument-for-unsc-resolution, accessed on july 8 2019. 6 princeton n. lyman, “saving the un security council-a challenge for the united states”, max planck yearbook of united nations law online 4, no. 1 (2000): 127-146, 136, doi: 10.1163/187574100x00052 ... “it is seen as decidedly unrepresentative. its membership has only expanded...there are other power centers today not so represented...” 7 david freestone, the principle of co-operation: terrorism a book chapter in the united nations and the principles of international law (london: routledge, 2002), 137... “international legal action to meet the threat of transnational terrorism requires the co-operation of states. that co-operation cannot be assumed and has not always been forthcoming...” 8 erika de wet, the chapter vii powers of the united nations security council (portland, oregon: hart publishing, 2004), 292. “regional organisations are thereby distinguished from a regional defence organisation, which has as its sole purpose the offering of protection against external aggression. whereas regional organisations are governed by chapter viii of the charter, defence organisations are governed by article 51 of the charter.” https://doi.org/10.25041/cepalo.v3no1.1789 https://kemlu.go.id/portal/id/page/42/keanggotaan_indonesia_pada_dk_pbb https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrument-for-unsc-resolution https://brill.com/search?f_0=author&q_0=princeton+n.+lyman lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 123 the structure of the articles is divided between section with abstract as the miniseries of the articles. the introduction presents some terminology used in the un, indonesian background in the un, in addition to the structure and research method that is used to analyze the two main issues. in the discussion section, the writer brought up two main issues which are the role of indonesia in unsc and the asean region. this study aims to analyze indonesia role as the non-permanent member of unsc globally and in the asean region. what are indonesia’s challenges in becoming a regional nexus; what is indonesia took the feasible actions in a twoyear tenure; what is indonesia’s strategy in building synergize asean and unsc. the method used to present this article is using normative legal research methods by illustrating how indonesia’s role in the unsc. this research does not try to explain the reform of the unsc institution, nor does it try to answer the hegemony or veto system of the unsc p-5. more comprehensive research is needed to describe the reform agenda of the unsc with its five permanent members. b. discussion 1. indonesia feasible action as non-permanent member of unsc provisions regarding the composition of the unsc membership are regulated in chapter v, article 23 of the un charter. earlier in 1965, the membership of the unsc was eleven members9. article 23 after being amended, the total number of members of the unsc becomes 15 countries consisting of 5 permanent members and ten non-permanent members. they have a term of office of two years.10 non-permanent members of the unsc other than a term of office of only two years, two other criteria must be fulfilled namely: a.) the candidate country has at least made a contribution to the united nations in maintaining peace and security, and b.) geographical balance.11 the unsc is one of the six main un organs, with the main mandate to maintain international peace and security. the un charter stipulates that: the unsc can act on behalf of all other un member states (article 24),12 and all members of the un agree to accept and carry out the decisions of the unsc (article 25).13 this is the main difference between the unsc and the general assembly (unga). unga resolution is non-binding though it is decided by all member states, while the unsc decision is binding even if it is determined only by several countries. the unsc consists of 15 member countries, namely five permanent members (us, uk, france, prc, russia) and ten non-permanent members. each non-permanent member has a 2year membership period (indonesian membership period started from january 1, 2019, to 9 marthinus omba, “tanggungjawab dan peranan dewan keamanan perserikatan bangsa-bangsa dalam memelihara perdamaian dan keamanan internasional”, jurnal hukum internasional 5, no. 4, (2008): 766-788, 770, doi: http://dx.doi.org/10.17304/ijil.vol5.4.187. 10 madeleine o. hosli, “squaring the circle? security council reform”, rev int organ 6, (2011): 163–187, 165, doi 10.1007/s11558-011-9101-1. 11 yukari iwanami, “regional caucus groupings and the nomination process for nonpermanent members”, social science research network electronic journal, april edition, (2018), doi: 10.2139/ssrn.3169142. 12 un charter article 24 (1; 2; 3; 4) in order to ensure prompt and effective action by the united nations, its members confer on the security council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the security council acts on their behalf. 2. in discharging these duties the security council shall act in accordance with the purposes and principles of the united nations. the specific powers granted to the security council for the discharge of these duties are laid down in chapters vi, vii, viii, and xii. 3. the security council shall submit annual and, when necessary, special reports to the general assembly for its consideration 13 un charter article 25 the members of the united nations agree to accept and carry out the decisions of the security council in accordance with the present charter. http://dx.doi.org/10.17304/ijil.vol5.4.187 indonesia as non-permanent member of united nations security council, … afandi sitamala 124 december 31 2020). at the time indonesia began its membership, the composition of 14 other unsc member countries was: (table 1) member states of the unsc source page https://kemlu.go.id/portal decision making of the unsc is carried out by voting, a decision on procedural votes is approved if supported by at least nine member countries regardless of the permanent members or not. decisions on all other matters are endorsed if supported by at least nine member countries, including all non-permanent un member states (veto). a good track record has been achieved by indonesia while active in un missions. indonesia plays an active role in several un peace keeping missions which are real contributions, especially in the realm of the unsc whose main objectives are world security and peace. in the third period 2007-2008, indonesia played an important role as a moderating voice, and as a bridge and consensus builder 14 among other unsc members. indonesia has also played an active role as a contributor to un peacekeeping operations (unpko) since 1957, more than 30 unpkos with the deployment of approximately 30,000 indonesian troops and police personnel were deployed on a mission to maintain security and peace.15 indonesia’s second priority is to build synergy between regional/regional organizations. where dynamic developments occur in many regions, regional organizations are now considered quick in responding to the issues that occurred in the area.16 both supportive and sceptical views on indonesia’s non-permanent membership in the unsc are also mutually interlocking.17 many parties are sure and trust the track record of indonesia which has become the fourth permanent member of the unsc.18 on another note, the ministry of foreign affairs retno marsudi state that there are at least four focus areas in indonesia two-year tenure, namely peacekeeping, conflict prevention, sustainable development and counterterrorism. 19 starting from that, what might be done by indonesia in a period of two years. one definite contribution as a non-permanent member of the unsc is to initiate the formation of ad hoc alliances on several important regional issues. non-permanent members of the unsc can also be interpreted as the potential delivery of the aspirations of developing countries that continue to 14 kementerian luar negeri indonesia, indonesia a true partner for world peace’ 2nd edition (jakarta: kementerian luar negeri indonesia, 2017), 3 15 ibid., 6 16 https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrumentfor-unsc-resolution, accessed on july 18, 2019. 17 https://theaseanpost.com/srticle/whatwould-indonesia-bring-un-securitycouncil, accessed on july 18, 2019. 18 https://www.lowyinstitute.org/the-interpreter/when-indonesia-sits-security-council, accessed on july 18, 2019. ‘there is still room for movement, however, and there will be pressure for indonesia to fulfil the expectations of those who elected them on the basis of its “partner for peace” campaign’ 19 https://theaseanpost.com/article/what-would-indonesia-bring-un-security-council, accessed on july 30, 2020. https://kemlu.go.id/portal https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrumentfor-unsc-resolution https://theaseanpost.com/srticle/whatwould-indonesia-bring-un-securitycouncil https://www.lowyinstitute.org/the-interpreter/when-indonesia-sits-security-council https://theaseanpost.com/article/what-would-indonesia-bring-un-security-council lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 125 grow.20 the real contribution of indonesia as a non-permanent member of the unsc lies in the use of soft power by continuing to become the exemplars of peacekeeping which is currently ranked 9th out of 121 contributing countries to unpko. indonesia must build cooperation between the non-permanent members of the unsc in building consensus on global issues and regional issues that also concern indonesia’s interests. 2. indonesia as non-permanent member of unsc in the asean region the role of regional organizations varies considerably depending on the characteristics of the regional organization. like where is the location, how is the organizational structure and leadership. for this reason, if the regional organization has been guided and the structure is clear enough, it will be very beneficial for the sustainability of the organization.21 as a subject of international law, the un can have legal relations between one organization and another.22 also, do agreements between one and the other. with the proliferation of regional organizations, it has created its own decentralized system of legal relations between the un and regional organizations. therefore, the un has special relations with specialized agencies that are within the un’s own organizational structure.23 however, while regional organizations have links to important issues of broad power in maintaining regional peace and security, there is a sub-ordination between the unsc and regional organizations.24 this role can be an opportunity for indonesia as a non-permanent member of the unsc and initiator in the region. according to the author’s view, indonesia’s great opportunity to become a unified voice expresses the aspirations of the region with the unsc25 in the humanitarian crisis sectors. especially in the rohingya humanitarian crisis, the fulfilment of the rights of migrant workers, and the humanitarian approach in dealing with the victims of human trafficking in the region. for some regional issues that require special attention from the unsc, such as the humanitarian crisis in myanmar’s rakhine state, many of the regional countries expect indonesia to bring related issues to the global stage. until this research was conducted, although the repatriation process of rohingya residents continued well, rohingya refugees still did not have citizenship. they were very prone to become victims of violent conflict.26 since the rohingya humanitarian crisis occurred, the un security council has remained silent on the rohingya humanitarian issue. indonesia, as a non-permanent member of the unsc, 20 nia norlyanti, “indonesia as non-permanent member of united nations security council pursuit of peace for rohingya and palestine”, atlantis press 241, 5th international conference on social and political sciences (icosaps 2018): 102. the non-permanent members in unsc of course has a contribution to the world. even the permanent members have a veto to determine the role of un toward several issue, but for developing states this chance is a major improvement to be heard in international forum. 21 j.g. merrills, international dispute settlement, 4th edition (uk: cambridge university press, 2005), 280 22 ian brownlie, principles of public international law, 4th edition (clarendon press, oxford, 1990), 696 23 ibid, the international labour organizations, the food and agricultural organizations, international civil aviation organizations, world health organizations etc. 24 un charter article 53 (1), “the security council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. but no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the security council, with the exception of measures against any enemy state, as defined in paragraph 2 of this article, provided for pursuant to article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the organization may, on request of the governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2. the term enemy state as used in paragraph 1 of this article applies to any state which during the second world war has been an enemy of any signatory of the present charter”. 25 regulation regarding the regional arrangements as mentioned on chapter viii of un charter, article 54 stated that “the security council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.” 26 anbar jayadi, with a seat on the un security council, what can key asean member indonesia do to solve the rohingya crisis?, the conversation, 24 september 2018 indonesia as non-permanent member of united nations security council, … afandi sitamala 126 plays a key role in initiating consensus dialogue at the unsc forum. as a “natural leader” in the asean region, indonesia can push the rohingya refugee crisis into the agenda of the unsc. at the regional level, indonesia plays an active role in ensuring the repatriation process runs well. indonesia also carries out its function as a natural leader in the region by participating in encouraging the implementation of the kofi annan report’s recommendations.27 rohingya refugees still do not have citizenship to be a problem that until now has not been resolved. indonesia can initiate the formation of ad hoc alliances at the asean regional level and then begin to call for the attention of the unsc to build consensus at the global level. with indonesia’s current bargaining position, it is the right time to bring international attention to the stateless issue of rohingya refugees while continuing to synergize between regional organizations and the unsc.28 the second focus that indonesia can draw between unsc and regional organizations is on the fulfilment of migrant workers’ rights, especially in southeast asia. migrant workers’ rights have been an area issue that has not received international attention lately. the philippines is a major supporter of regional reforms in the field of migrant workers. finally, the author sees that it will be difficult for indonesia to use its mandate as a nonpermanent member of the unsc to call attention to the unsc on the issue of the south china sea (scs). indonesia can contribute as a proponent for regional stability, security, and peace in the region. although the two-year tenure is a major obstacle for indonesia to participate fully, indonesia must still play an active role in bridging the region and the unsc. with these contributions, indonesia can become a role model where a country carries its influence through international institutions. indonesia’s position as a non-permanent member of the unsc provides a vital opportunity to bring an international focus on related issues and advance synergies at the international level and regional organizations. however, we should also not lose sight of the role of regional organizations in the promotion of preventive diplomacy, peacekeeping, peacemaking and postconflict peacebuilding. while the security council would continue to have primary responsibility for maintaining international peace and security, regional organizations should not only provide support to the unsc but also contribute to a deeper sense of a more democratic international order.29 c. conclusion in two years, the tenure of indonesia membership, several feasible actions need to be done on a global level is to act as the potential delivery of the aspirations of developing countries that continue to grow. the real contribution of indonesia as a non-permanent member of the unsc lies in the use of soft power by continuing to become the exemplars of peacekeeping. indonesia can act as an initiator in the region. regional organizations have links to important issues of broad power in maintaining regional peace and security. there is a sub-ordination between the unsc and regional organizations. to sum up, indonesia’s position as a non-permanent member of the unsc provides a vital opportunity to bring an international focus on related issues and advance synergies at the international level and regional organizations. indonesia must also understand that it not only 27 the jakarta post, indonesia: partner for peace, security, prosperity, januari 11, 2018 28 further reads sian troath on iowyinstitute.org stated that ”indonesia’s position as a non-permanent member of the security council will provide a vital chance to focus international attention on the issue and work towards advancing synergy between international and regional organizations.” 29 https://www.thejakartapost.com/academia/2018/06/11/great-opportunity-great-responsibility.html, accessed july 30, 2020. https://www.thejakartapost.com/academia/2018/06/11/great-opportunity-great-responsibility.html lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 127 represents southeast asia per se but also the wider asia pacific and cannot pursue its interests while on the council.30 references a. journal banjarani, desia rakhma et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1, 2019: 11– 18, doi: 10.25041/cepalo.v3no1.1789. iwanami, yukari. “regional caucus groupings and the nomination process for non-permanent members”, social science research network electronic journal, april edition, 2018, doi: 10.2139/ssrn.3169142. lyman, princeton n. lyman. “saving the un security council-a challenge for the united states”, max planck yearbook of united nations law online 4, no. 1, 2000: 127-146, doi: 10.1163/187574100x00052. madeleine o. hosli, “squaring the circle? security council reform”, rev int organ 6, 2011: 163–187, 163, doi 10.1007/s11558-011-9101-1 norlyanti, nia. “indonesia as non-permanent member of united nations security council pursuit of peace for rohingya and palestine”, atlantis press 241, 5th international conference on social and political sciences (icosaps 2018): 102. omba, marthinus. “tanggungjawab dan peranan dewan keamanan perserikatan bangsa-bangsa dalam memelihara perdamaian dan keamanan internasional”. jurnal hukum internasional 5, no. 4, 2008: 766-788, doi: 10.17304/ijil.vol5.4.187. b. book brownlie, ian. principles of public international law, 4th edition. oxford: clarendon press, 1990. e, jean. founding the united nations: an evolutionary process, a book chapter in jean e. krasno (ed), the united nations: confronting the challenges of a global society. london: lynne rienner, 2004. freestone, david. the principle of cooperation: terrorism, a book chapter in the united nations and the principles of international law. london: routledge, 2002. kementerian luar negeri indonesia. indonesia a true partner for world peace’ 2nd edition. jakarta: kementerian luar negeri indonesia, 2017. merrills, j. g. international dispute settlement, 4th edition. uk: cambridge university press, 2005. wet, erika de. the chapter vii powers of the united nations security council. portland, oregon: hart publishing, 2004. c. regulation united nations charter 1945 30 ibid. https://doi.org/10.25041/cepalo.v3no1.1789 http://dx.doi.org/10.2139/ssrn.3169142 https://brill.com/search?f_0=author&q_0=princeton+n.+lyman http://dx.doi.org/10.17304/ijil.vol5.4.187 indonesia as non-permanent member of united nations security council, … afandi sitamala 128 d. internet https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrumentfor-unscresolution, january 31, 2019. https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrument-forunsc-resolution, accessed on july 8, 2019. https://kemlu.go.id/portal/id/page/42/keanggotaan_indonesia_pada_dk_pbb, july 8, 2019, at 23.30. https://kemlu.go.id/portal/id/page/46/keanggotaan_indonesia_pada_dk_pbb, accessed on july 19, 2019. https://theaseanpost.com/srticle/whatwould-indonesia-bring-un-securitycouncil, accessed on july 18, 2019. https://theconversation.com/with-a-seat-on-the-un-security-council-what-can-key-aseanmember-indonesia-do-to-solve-the-rohingya-crisis-102915, accessed on july 8, 2019. https://www.lowyinstitute.org/the-interpreter/when-indonesia-sits-security-council, accessed on july 18, 2019. the jakarta post, indonesia: partner for peace, security, prosperity, january 11, 2018. https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrumentfor-unsc-resolution https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrumentfor-unsc-resolution https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrument-for-unsc-resolution https://en.antaranews.com/news/122080/indonesia-should-establish-legal-instrument-for-unsc-resolution https://kemlu.go.id/portal/id/page/42/keanggotaan_indonesia_pada_dk_pbb https://theaseanpost.com/srticle/whatwould-indonesia-bring-un-securitycouncil https://www.lowyinstitute.org/the-interpreter/when-indonesia-sits-security-council 63 legal protection of privacy data through encryption technology thania christy corne pt. indo energy solutions, indonesia, email: thaniachristy97@gmail.com submitted: august 5, 2019; reviewed: august 29, 2019; accepted: september 11, 2019 article info abstract keywords: protection, privacy, encryption, international, national. doi: 10.25041/lajil.v1i2.2027 technological developments in the era of globalization bring humans into the digital age. all things will directly contact with an electronic system. and so with the data, some of the data among this world is privacy. that’s why encryption is needed to be applied. initially, encryption was used as a privacy data protector, but in its development encryption gave birth to problems in the legal field. where criminals use encryption as a shield for their crimes. therefore, legal issues arise, whether for reasons of government or state security can have access to one’s privacy data. how does international or national law regulate the issue of using decryption of encryption technology? the method used in this paper is a juridicalnormative comparative legal research method. the result shows that international law does not regulate the use of encryption in protecting privacy data in the digital world comprehensively because some of the countries claim that the use of encryption is a part of human right, on the other hands some country has another vision on national security. a. introduction the use of the internet in various fields of life not only makes things easier but also gives birth to some problems, including in the legal field. one of the legal issues related to information technology is data privacy, where internet technology allows access to someone’s privacy data freely. this happens because the traffic of sending data and information is increasingly global, and the concept of open system authentication (osa)1 of a network makes it easy for someone to enter into another network. often when someone wants to do a transaction or registration in an organization or mailing list on the internet, the user must send his personal data first and this data is recorded/stored in an electronic system. at this time, the data leakage occurs and is used by various parties such as companies or individuals. it often happens that internet users then receive various advertising messages (later referred to as junk mail) in their inboxes, which is most likely originated from the leakage of personal data that has been given it.2 on the other hand, non-governmental organizations today urged the government to be able to follow up on the public’s right to get access to information on the administration of the government system to the people listed in the freedom of information bill. this is because a good government can be marked by a transparent government system and is able to increase public participation and 1 open system authentication (osa) is the process by which computers can gain access to wireless networks that use the wired equivalent privacy protocol (a data security method that uses keys for authentication to access points). 2 asri sitompul, hukum internet, pengenalan mengenai masalah hukum di cyberspace (bandung: citra aditya bakti, 2001), 25. volume 1 issue 2, 2019: pp. 63-70. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:thaniachristy97@gmail.com https://doi.org/10.25041/lajil.v1i2.2027 legal protection of privacy data through encryption technology thania christy corne 64 increase public accountability to the government elite. meanwhile, in fact, there are also human rights that function to protect personal interests, namely the interests of privacy, correspondence and dignity of people (honour and reputation). even ideally, the public interest is aimed at protecting the interests of the individual because the public is the sum total of all individuals. the balance of these two interests is a dilemma in law enforcement, where guarantees of individual interests are also harmonized with the interests of the community or other individuals. although on the one hand, there are provisions regarding freedom of information; on the other hand, there are also provisions regarding data protection and protection of personal confidentiality of information confidentiality. one interesting case example of inequality in law enforcement on national security and privacy protection is the case between the federal bureau of investigation (fbi) and apple company (apple inc.). where in 2016, precisely after the san bernardino shootings, apple and the fbi launched a public battle over the availability of encryption, which basically cannot be solved in one of the consumers’ devices. it is happening because apple has increasingly increased the use of encryption that is classified as strong and secure in its products, so when the fbi tried to open a security code on the iphone 5c used by one of the shooters in the attack in san bernardino, california, which killed 14 people in december 2015 in the past, there were many difficulties in solving the security code, so this became an obstacle for the fbi in solving the shooting case. right on february 16, 2016, in response to a request from the united states department of justice, federal judges ordered apple to create a custom version (backdoor) of its ios operating system that would allow investigators in this case to obtain mobile security features. apple’s chief executive officer, tim cook, responded in an open letter, in which he stated that the government’s demands were an “invasion of privacy” with “dire” consequences. there is a discussion among technology experts, but most of the technology experts, law professors, technology companies and human rights organizations support apple’s policy in this matter.3 the broad view among those who oppose fbi requests is if apple is forced to modify its software to unlock the cellphone password, it will set a precedent that allows the us governmentand potentially other governments as well as rival technology companies apple to weaken or block their encryption by providing a backdoor for intelligence and other security services. in the digital era as it is today, the use of encryption is part of protecting data privacy. this is because encryption technology can protect communications and data from spying. unfortunately, many governments are very critical of encryption and have made policies and legal actions to prevent or limit the ability of individuals to use encryption. countries such as pakistan, india and cuba prohibit encryption. government officials, including those in france, the united kingdom and the united states, have criticized encryption over fears that it will cause the “going dark” intelligence team. 4 this is a fact that the use of a strong encryption system can pose challenges to access information intended for law enforcement. based on the impact and laws governing the use of encryption technology, the author is interested in discussing: how does international law regulate the use of cryptographic technology in protecting data privacy? how does indonesian law regulate the issue of using cryptographic technology as a tool to protect data privacy? this type of research used is juridical-normativecomparative, which is legal research literature examines a problem based on legal norms contained in international regulations and legislation and comparing between two groups or more than a certain variable to produce a conclusion. normative legal research is based on data obtained from library study technique method, namely by studying the provisions of the legislation, international guidelines, books, documentation, journals, and accessing data on the internet related to issues within the scope of international law and the scope of national law.5 data analysis was carried out by outlining and giving the meaning of each data obtained into sentences that are detailed, orderly, 3 http://www.usatoday.com/story/tech/news/2016/02/19/apple-fbi--court-march-22-riverside-march22/80635402/, accessed on november 11, 2018. 4 going dark is a term for blind, which in this case means the concern that part of online communication cannot be accessed by law enforcement or intelligence services. 5 felishella earlene and jesslyn evelina tandrajaya, “sengketa penguasaan tanah antara warga kapuk poglar rt 07 / rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia,” cepalo 3, no. 2 (2019): 55–62, 57, doi: 10.25041/cepalo.v3no2.1844. http://www.usatoday.com/story/tech/news/2016/02/19/apple-fbi--court-march-22-riverside-march22/80635402/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 65 effective, logical and not overlapping to facilitate the author in interpreting and analyzing the data which then concludes response to the problems contained in this paper. b. discussion 1. international provisions that regulate encryption technology in protecting data privacy there is no specific regulation governing the use of encryption technology in international law. still, two international organizations, the organization for economic cooperation and development (oecd) and amnesty international have issued guidance on the use of encryption to protect privacy data which is then expected to be a reference in the formation of international regulations regarding the use of encryption, including: a. the oecd guidelines for the protection of privacy and transborder flows of personal data the oecd formulated the guidelines for the protection of privacy and transborder flows of personal data for the first time in 1980 to address problems arising from increased use of personal data and global economic risks resulting from restrictions on the flow of information across national borders. this 1980 guide contains a set of privacy principles that were first agreed upon internationally. however, as patterns change in the use of personal data, as well as new approaches to privacy protection, the 1980 guidelines need to be updated. in 2013, the oecd released the 2013 guidelines for the protection of privacy and transborder flows of personal data as a result of the revision of the guidelines for the protection of privacy and transborder flows of personal data 1980. during the past three decades (1980-present), personal data has an increasingly important role in both the economic, social and daily life sectors. information and communication technology innovations have influenced business flow, government administration, and individual activities. the volume of personal data collected, used, and stored is very broad and continues to increase. at the same time, this condition increases the risk to individual privacy. personal data is increasingly used in almost every human activity. this increased risk indicates the need for more effective protection to protect privacy. based on the formulations written in these guidelines, the author can conclude that although these guidelines do not mention and regulate the provisions regarding encryption technology, explicitly in chapter, i of the fifth section of the guidelines for the protection of privacy and transborder flows of personal data has arrangements regarding encryption technology must be made immediately considering the functional use of this technology is very effective in protecting personal data. these guidelines provide obligations for member states to make national regulations with specific principles concerning the protection of privacy and individual freedom relating to privacy data in networks recorded in cookies so as not to be misused, this becomes a universal and applicable legal formulation for member countries.6 b. amnesty international policy on encryption this non-governmental organization (ngo) issued a research report titled “encryption: a matter of human right” with index number: pol40 / 3682/2016 on march 22, 2016, which outlines the human rights issues related to the use of technology encryption in digital communications and services. this research report not only discusses facts that have occurred globally with regard to cases involving national security and privacy protection for personal data due to the use of encryption technology but also includes international policies on the use of encryption technology which are still classified as recommendations for can be used as a reference for countries in formulating national and international policies later. international policy recommendations on encryption technology issued by amnesty international represent amnesty international’s position with respect to human rights and the standards that apply to the use of encryption devices and services in digital technology by right-holders, and the potential restrictions 6 albert j. marcella jr. dan carol stucki, privacy handbook: guidelines, exposures, policy implementation, and international issue (new jersey: john wiley & sons, inc, 2003), 74. legal protection of privacy data through encryption technology thania christy corne 66 on their use by countries. these policy recommendations will be reviewed and revised as needed on an ongoing basis. in these guidelines, it is explained that in the digital age, the use and access to encryption is an important part of the right to protect privacy and freedom of expression, information and opinions, and also have an impact on the rights of freedom of association, association and other human rights. encryption is a very important tool for human rights defenders, activists and journalists, who all depend on it with increasing frequency to protect their safety and those of others. amnesty international believes that countries must facilitate the use of encryption and must not violate, or allow interference by others, in ways that cannot be justified. both of these guidelines are considered insufficient to be used as an international regulation that can be universally applied. for this reason, each country has its own rules governing the use of encryption technology. the diversity of laws and regulations used in various countries proves that encryption technology is very important to regulate. still, currently, there is no single regulation regarding the use of encryption products and services that can be applied universally and apply in all countries. through the matrix above the writer tries to show that the regulation of the use of encryption across countries has a very significant difference. each country has its own opinion based on their needs to decide whether the use of encryption is an attempt to protect privacy or is a form of control for national security. the debate that exists in the international cyber world today is the issue of privacy which is a part of human rights can be legally protected through the use of encryption technology. the author himself believes that the use of encryption technology is a form of protection for privacy data so that in the name of human rights, the government should not have access to encrypted communication data. 2. encryption technology regulations in protecting data privacy according to national law national legislation does not contain provisions regarding the use of encryption technology, but in the implementation of law enforcement efforts tapping is legalized. tapping is a form of action of encrypting encrypted data. national law authorises wiretapping on the grounds as an aid in the collection of digital evidence. law number 11 the year 2008 concerning information and electronic transactions jo. law number 19 year 2016 concerning amendments to law number 11 the year 2008 concerning information and electronic transactions explicitly mentions prohibited acts regarding electronic information and transactions. some examples of prohibited acts in the information and electronic transactions law are access to electronic systems belonging to others by breaking, exceeding, or breaking into security systems to obtain information, as well as tapping on information on other people’s computers unless done by a special party with special permission (such as for law enforcement efforts). the contents of this regulation are good enough, but there is no regulation regarding encryption technology that often plays a vital role in data protection. encryption technology is needed to ensure the security of data owned by individuals and institutions to maintain confidentiality. in this information and electronic transactions law, tapping activities are legalized under the pretext of law enforcement efforts, which of course can only be done by a special body that already holds a special permit to do so. thus it can be said that if wiretapping is legalized, all forms of encryption technology, which is necessary in the proof as evidence, the government may require companies or individuals to decrypt or even create a “backdoor” to be able to access encrypted data. the action to be able to retrieve data or information stored in electronic storage media can be used as new evidence.7in indonesia, the authority for investigators and investigators to conduct wiretapping is regulated in statutory provisions. but in the implementation of wiretapping in the field, this issue has become the most discussed and debated issue today. especially for reasons because tapping involves protecting one’s privacy and all kinds of forms related to the implementation of one’s duties. tapping referred to as decryption, has not been normatively regulated in a separate law. while in practice continues to cause controversy about the procedures for tapping/decryption. the arrangements are still scattered in various laws. so that there is no general guideline for the police, 7 al wisnubroto dan g. widiartana, pembaharuan hukum acara pidana (bandung: citra aditya bakti, 2005), 100-101. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 67 attorney general’s office, national narcotics agency, the corruption eradication commission, in conducting wiretapping, each tapping technique is in accordance with the orders of each institution in the law. whereas on the other hand, some people consider that the action of wiretapping/decryption carried out by each law enforcement officer is contrary to human rights, especially regarding the protection of privacy. tapping arrangements are also contained in other legislation, such as government regulation number 19 of 2000 concerning the joint team for corruption eradication and strictly stated in article 87, article 88, article 89. other regulations, namely government regulation number 52 of 2000 concerning telecommunications, regulation of the minister of communication and informatics number 11 of 2006 concerning technical tapping of information, regulation of the minister of communication and informatics number 1 of 2008 concerning recording of information for state defense and security, regulation of the head of police in the state of the republic of indonesia number 5 of 2010 concerning tapping procedures at the republic of indonesia national police monitoring center and the highly confidential operational procedures of the corruption eradication commission are inaccessible. regulation of the minister of communication and informatics number 20 year 2016 concerning protection of personal data in the electronic system has stipulated that any personal data stored in the electronic system must be in the form of encrypted data. this is contained in article 15 paragraph (2): “personal data stored in an electronic system must be in the form of encrypted data.” the government as contained in article 23 paragraph (1), namely: “for the purposes of the law enforcement process, the electronic system provider is required to provide personal data contained in the electronic system or personal data generated by the electronic system at the request of a legitimate request from law enforcement officials based on statutory provisions.” arrangement of restrictions on the privacy rights of every citizen or restrictions on human rights through tapping arrangements is contained in the law: narcotics; psychotropic drugs; telecommunication; corruption crime; criminal acts of terrorism; trafficking in persons; information and electronic transactions; state intelligence; corruption eradication commission; advocate; judicial commission; and other laws, by law to become legal. by law, the wiretapping provisions stipulated in various laws do not conflict with the basic norms (constitution), especially article 28j paragraph (2) of the 1945 constitution. the state itself must maintain, serve, protect, and create comfort, security for indonesian citizens with one of the legal instruments applied in criminal law. considering the increasing number of crimes, especially extraordinary crimes, and these crimes have a serious impact on the interests of the state and the interests of the people, regulating wiretapping in the various laws mentioned above is very urgent. the wiretapping provisions stipulated in various laws mentioned above are not solely intended to carry out abuse of state power. still, it is done with the intention solely to guarantee recognition and respect for the rights and freedoms of others and to fulfil demands justice by moral considerations, religious values, security and public order in a democratic society. various laws and regulations in indonesia do not include regulations on the use of encryption technology, which in this case is intended as data privacy protection. the government can own private data belonging to each individual. the national security portal in indonesia severely restricts the freedom of individuals to be able to store their private data. the following is a comparison of indonesian laws and regulations in the use of encryption. national regulation general right to encryption mandatory minimum or maximum encryption strength licensing /registrati on requirem ents import/export controls obligations on providers to assist authorities obligations on individuals to assist authorities 1945 constitution explicitly in article 28f explicitly in article 33 paragraph (2) explicitly in article33 paragraph (2) explicitly in article28 j paragraph legal protection of privacy data through encryption technology thania christy corne 68 (2) law number 11 year 2008 jo. law number 19 year 2019 concerning amendments to law number 11 year 2008 concerning information and electronic transactions [tapping] explicitly in article 31 paragraph (1) dan (2) law number 5 of 1997 concerning psychotropic s [tapping] explicitly in article 55 letter c (by the police) law number 35 of 2009 concerning narcotics [tapping] explicitly in article1 number (19) and article 75 letter i (by the national narcotics agency investigator) law number 36 of 1999 concerning telecommun ications article 42 paragraph (1) article 42 paragraph (2) (by the company to be given to the police) regulation of the minister of communicati on and informatics number 20 year 2016 concerning protection of personal data article 15 paragraph (2) article 23 paragraph (1) based on this table, the author believes that the regulation regarding the use of encryption technology has not been sufficient in dealing with the issue of privacy, data protection. indonesian laws are only focused on the government’s authority to be able to access and even have the right to obtain data on each individual in the electronic system with reasons for law enforcement and protection of national security. thus, the regulation is concretely regulates the use of encryption as lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 69 a protection for data privacy starts from the regulation of the rights of each individual to be able to use encryption technology, restrictions on the use of encryption, requirements for encryption product and service providers, control of encryption controls, to provider obligations, and encryption users in helping authorities enforce the law. c. conclusion encryption technology is considered very important in protecting data privacy. regulations regarding the use of encryption technology in international law have been established in several guidelines such as the oecd guidelines for the protection of privacy and transfers of personal data and amnesty international policy on encryption. it allows every country to decrypt individual personal data based on sovereignty, national security and public policy, but vice versa as stipulated in the un guiding principle on business and human rights. companies have the responsibility to respect human rights independently and regardless of the ability and will of the state, but these regulations cannot be applied globally because the legalization is only soft law. international arrangements regarding encryption technology that apply to all countries in the world have not been established until now. the regulation of encryption technology is very important because the problem of using encryption technology services and services, and their description are closely related to human rights. the national regulation regarding encryption technology is not written for its use. in several national legislation, it is stated that the wiretapping activity (which is a special continuation in the form of decryption measures on the use of encryption services and services) is legalized under the pretext of being a law enforcement effort, which of course, it can only be done by a special body that already has a special permit to do it. the normative authority of wiretapping to law enforcement officials does not conflict with human rights. the authority of wiretapping/decryption of the use of encryption technology, although not yet concretely written, has fulfilled the principle of legality and is in accordance with the basic norms in article 28j paragraph (2) of the 1945 constitution. references a. journal earlene, felishella, tandrajaya, jesslyn evelina. “sengketa penguasaan tanah antara warga kapuk poglar rt 07 / rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia,” cepalo 3, no. 2, 2019: 55–62, doi: 10.25041/cepalo.v3no2.1844. b. book wisnubroto, al., widiartana, g. pembaharuan hukum acara pidana, bandung: citra aditya bakti, 2005. albert j. marcella jr. & carol stucki. privacy handbook: guidelines, exposures, policy implementation, and international issue. new jersey: john wiley & sons, inc, 2003. sitompul, asri. hukum internet, pengenalan mengenai masalah hukum di cyberspace. bandung: citra aditya bakti, 2001. c. regulation corruption eradication commissionstandard operational procedures government regulation number 19 of 2000 concerning the joint team for corruption eradication government regulation number 52 year 2000 concerning telecommunications operation law number 11 year 2008 concerning information and electronic transactions jo. act number 19 of 2016 concerning amendments to act number 11 of 2008 concerning information and electronic transactions law number 35 of 2009 concerning narcotics law number 36 of 1999 concerning telecommunications law number 5 of 1997 concerning psychotropics legal protection of privacy data through encryption technology thania christy corne 70 regulation of the head of police in the state of the republic of indonesia number 5 of 2010 concerning tapping procedures at the republic of indonesia national police monitoring center regulation of the minister of communication and informatics number 1 of 2008 concerning recording information for national defense and security regulation of the minister of communication and informatics number 20 year 2016 concerning protection of personal data regulation of the minister of communication and informaticsnumber 11 of 2006 concerning technical tapping of information the oecd guidelines for the protection of privacy and transborder flows of personal data amnesty international policy on encryption d. internet http://www.usatoday.com/story/tech/news/2016/02/19/apple-fbi--court-march-22-riversidemarch22/80635402/, accessed on november 11, 2018. www.oecd.org/internet/interneteconomy/49710223.pdf., accessed on june 22, 2019. http://www.usatoday.com/story/tech/news/2016/02/19/apple-fbi--court-march-22-riverside-march22/80635402/ http://www.usatoday.com/story/tech/news/2016/02/19/apple-fbi--court-march-22-riverside-march22/80635402/ http://www.oecd.org/internet/interneteconomy/49710223.pdf 55 juridical analysis of the asean agreement on transboundary haze pollution and its implementation in indonesia miftah ramadhan bank central asia, indonesia, email: ramamira9@gmail.com submitted: july 15, 2019; reviewed: august 2, 2019; accepted: august 26, 2019 article info abstract keywords: pollution, environment, international, national. doi: 10.25041/lajil.v1i2.2025 the trans-boundary haze pollution in the international environment scope is not an uncommon problem to be face nowadays. the case that leads to the controversy of how to solve and to decide which party to responsible brings states over the world to have a significant concern in the case to make a new regulation on cross-border smoke pollution. the method used in this paper is a juridical-normative comparative legal research method. the result shows that in international scope both of asean agreement on transboundary haze pollution (aathp) and rio declaration is not complete enough to handle the case of the trans-boundary haze pollution problem. therefore, a legal framework is needed to support the international and national regulation concerning on environment. a. introduction global issues in the international landscape are not only related to political and security issues but also including social, economic, cultural and environmental issues. international environmental issues have become one of the world’s concerns because of its purpose as an asset in the future to be enjoyed by all human being. the development of environmental law cannot be separated from the worldwide movement to give greater attention to the environment because the environment has become a problem that needs to be addressed together for survival. 1 one of the environmental problems which are special to be concerned in asean is the smog (trans-boundary haze pollution). the haze that occurred in the asean region is frequently caused by forest fires that occurred in indonesia. environmental problems in the form of smog in indonesia itself are not uncommon problems. environmental and land problems in forest areas are very complex and often occur.2 this is because mortal affect the environment, and the environment will affect the living patterns of organisms that live in it.3 this is motivated by the composition of a fairly extensive forest area in indonesia. article 1 number (2) law no. 41 of 1999 concerning to forestry, explains that a forest is an ecosystem unit in the form of the expanse of land containing biological natural resources which are dominated by trees in the fellowship of the natural environment with one another and cannot be separated. forest is a gift from god that is given to humans to form a balanced pattern on earth and must be preserved. forests are the lungs of the world that have the potential and function to maintain the balance of the 1 koesnadi hardjasoemantri, hukum tata lingkungan (yogyakarta: gajah mada university press, 2001), 6. 2 kartiko harnadi, “model penguasaan tanah oleh masyarakat desa margosari dan penyelesaiaannya pada kawasan hutan lindung register 22 way waya kabupaten pringsewu,” cepalo 2, no. 2 (2019): 85–92, 86, doi: 10.25041/cepalo.v2no2.1765. 3 muhammad akib, hukun lingkungan perspektif global dan nasional (jakarta: raja grafindo persada, 2014), 2. volume 1 issue 2, 2019: pp. 55-62. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:ramamira9@gmail.com https://doi.org/10.25041/lajil.v1i2.2025 juridical analysis of the asean agreement on transboundary haze pollution and... miftah ramadhan 56 surrounding environment. these potentials and functions contain benefits if they can be managed properly by humans.4 based on data from the ministry of environment and forestry, in 2015 the forest area in indonesia recorded an area of 2,611,411 ha burned, in 2016 an area of 438,363 ha and in 2017 covering an area of 165,484 ha (data per january 2018).5 the burning of forest areas in indonesia is caused by burning land for new plants that will be planted, and the only reason for this measure is because it is more saving time and costs.6 in 2016 there was a fire in riau province due to corporate companies, namely pt wahana subur sawit indah (wssi) and pt sontang sawit permai (ssp). the total area of burning forest that occurred as a result of this case was 120 ha, giving rise to smoke that was thick enough to carry wind until it entered the jurisdiction of the neighbouring country.7 forest burning is intentionally carried out by the company to clear land. this is done to shorten the time and save money for clearing forest land. the problem of forest fires due to forest fires in indonesia takes place every year on average carried out by corporations both nationally and internationally. nowadays, international law has not been able to impose legal responsibility on corporations directly, and state authority is still needed to sanction law as an intermediary. in this case, international law has still not moved from the use of classical theory which adheres to the “state-centric” concept.8 the transboundary haze pollution case tends to occur frequently in the asean region, the case with the highest smoke level occurred on june 21, 2013, in singapore with the pollutant index reaching 401 psi (pollutant standards index9).10 the pollutant index of more than 300 psi can be categorized as dangerous because it can adversely affect the health of both animal, plant and human biota within the coverage of the air pollution area. based on this case, the state of singapore is very disadvantaged because the effects of the haze of forest fires in indonesia can endanger the health of the community, especially those who have not been healthy and for elderly. the haze caused by forest fires is an act of environmental destruction. it is not in accordance with the sustainable environmental development stipulated in the 1992 rio declaration on environment and development. according to asdar in his journal entitled trans-boundary haze pollution in malaysia and singapore due to forest fires in riau province viewed from international environmental law, fires are considered a potential threat to sustainable development because they have a direct impact on ecosystems, the contribution of carbon emissions and for biodiversity and riau province becomes a source of transboundary haze pollution for nearby countries namely malaysia and singapore. 11 as land and forest fires worsened in 1997-1998, asean member countries signed the asean agreement on trans-boundary haze pollution (aathp) on june 10, 2002, in kuala lumpur, malaysia.12 the establishment of aathp is intended to prevent and monitor pollution of smog due to land or forest fires through national efforts of each country. smoke pollution due to forest or land fires 4 ayu nurul alfia, adji samekto, nanik trihastuti, “tanggung jawab perusahaan transnasional dalam kebakaran hutan di riau dalam perspektif hukum internasional,” diponegoro law journal 5, no. 3 (2016): 1-14, 1. 5 http://www.menlhk.go.id/siaran-81-pencegahan-karhutla-berhasil-tekan-angka-deforestasi.html, accessed on june 16, 2018. 6 anih sri suryani, “penanganan kabut akibat kebakaran hutan di wilayah perbatasan indonesia”, pusat pengkajian, pengolahan data dan informasi (p3di) sekretariat jenderal dpr ri 3, no. 1 (2012): 59-75, 70, doi: 10.46807/aspirasi.v3i1.256. 7 https://regional.kompas.com/read/2016/09/15/15573291/kebakaran.hutan.di.riau.dua.perusahaan.sawit.jadi.tersangka accessed on august 19, 2018. 8 ayu nurul alfia, adji samekto, nanik trihastuti, op. cit., 7. 9 standard pollutant index (psi) is an index used as a reference for the air pollution standard index (ispu). standard pollutant index (psi) is used by several countries, including the united states. the calculation method used in the standard pollutant index has a principle on the level of effects that are caused on humans and the environment due to the exposure of a pollutant parameter. the level of effect caused is considered constant for each particular pollutant exposure concentration. 10 https://www.bbc.com/indonesia/ dunia/2013/06/130621_singapura_haze, accessed on august 10, 2018. 11 asdar, “transboundary haze pollution di malaysia dan singapura akibat kebakaran hutan di provinsi riau ditinjau dari hukum lingkungan internasional,” jurnal untad 4, no. 3 (2015): 1-12, 1. 12 https://asean.org/asean-socio-cultural/cop-to-aathp-conference-of-the-parties-to-the-asean-agreement-ontransboundary-haze-pollution/, accessed on march 8, 2019. http://www.menlhk.go.id/siaran-81-pencegahan-karhutla-berhasil-tekan-angka-deforestasi.html https://doi.org/10.46807/aspirasi.v3i1.256 https://regional.kompas.com/read/2016/09/15/15573291/kebakaran.hutan.di.riau.dua.perusahaan.sawit.jadi.tersangka https://www.bbc.com/indonesia/%20dunia/2013/06/130621_singapura_haze https://asean.org/asean-socio-cultural/cop-to-aathp-conference-of-the-parties-to-the-asean-agreement-on-transboundary-haze-pollution/ https://asean.org/asean-socio-cultural/cop-to-aathp-conference-of-the-parties-to-the-asean-agreement-on-transboundary-haze-pollution/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 57 must be reduced to achieve sustainability and environmentally sound principles. in accordance with the rio declaration, environmental development is needed to meet human needs so that humans can live well on earth. the absence of international regulations that specifically regulate the problem of transboundary haze pollution has caused victims of the difficulties in prosecuting losses caused by them. as a form of demand for accountability, victims of smog can provide a protest note to a country that is a source of smog to be able to provide accountability. the responsibility that can be taken by the country that is the source of the haze is to establish legislation that regulates every activity of the company which can lead to forest fires and punish the perpetrators of environmental crimes in accordance with applicable laws. based on the impact and laws governing environmental crime in the form of transboundary haze pollution, the authors are interested in discussing: how does international law regulate transboundary haze pollution? how does the implementation of the asean agreement on transboundary haze pollution in indonesia? this type of research used juridical-normativecomparative, which is legal research literature examines a problem based on legal norms contained in international regulations and legislation and comparing between two groups or more than a specific variable to produce a conclusion. the method in data collection used library study technique, practice, namely by studying the provisions of the legislation, international guidelines, books, documentation, journals, and accessing data on the internet related to issues within the scope of international law and the scope of national law. data analysis was carried out by outlining and giving the meaning of each data obtained into sentences that are detailed, orderly, effective, logical and not overlapping to facilitate the author in interpreting and analyzing the data which then concludes response to the problems contained in this paper. b. discussion 1. transboundary haze pollution in national and international legal frameworks in this sub-section, the author will describe the differences in the scope and substance of international treaties and international declarations to make it easier for readers to understand. the rio declaration was formed to protect the environment from being able to be enjoyed in the future by humanity. sustainable development is an ideal that is expected to be carried out by humans in processing resources in the environment. management of natural resources is also expected to be carried out properly and correctly so as not to disturb neighbouring countries. every country must guarantee a good environment as the right of all people both now and in the future. all safeguards regarding the environment are regulated in the rio declaration, but to be specific to cross-border smoke pollution has not been discussed at this convention. this regulation is the basis and can be further developed for other international regulations relating to the environment. the establishment of the asean agreement on transboundary haze pollution was aimed at protecting forests in asean countries and assisting in the event of cross-border smoke pollution due to forest fires so that they can be completed quickly. this agreement discusses the risks of crossborder smoke pollution, which can endanger all sectors in human life. monitoring of smoke pollution is a priority to safeguard both the environment and humans. each party in this agreement must take precautionary measures to control any activities that can cause forest fires. parties who need assistance to extinguish forest fires can request the role of other parties. to make it easier for readers to know the discussion in both national and international laws, the author will explain the differences in the contents of each article using a matrix. matrix 1 will explain differences in the framework of international law, namely the rio declaration on environment and development 1992 and the asean agreement on transboundary haze pollution. matrix 2 will explain the differences in the national legal framework that apply in indonesia, which has a relationship in handling smoke due to forest conditions. matriks 1. comparison of international regulations juridical analysis of the asean agreement on transboundary haze pollution and... miftah ramadhan 58 international regulation rio declaration asean agreement on transboundary haze pollution types of forest fire unexplained article 1 fire prevention and forest rehabilitation efforts unexplained article 7, 13, and 16 arrange fire prevention measures and in the event of a fire can ask for help from neighboring countries. transboundary haze pollution arrangement unexplained article 1, 4, and 12 arrange transboundary haze pollution, cooperation in the implementation of monitoring, and emergency response environmental quality standard category unexplained unexplained prohibition of forest burning article 7 regulate environmental protection and preservation on earth article 9 arrange for the state to make a policy against the cause of fire sanctions for forest burning crimes article 16 regulates that polluters must bear the costs of pollution unexplained corporate crime sanctions unexplained unexplained recommended national or international arrangements article 27 regulates that in this declaration it can be developed back to international regulations article 4 and 28 regulating that the state must make national regulations to reduce haze pollution transboundary based on (matrix 1. comparison of international regulations) according to the authors of the international legal instruments it is sufficient to explain the protection of the environment, especially the transboundary haze pollution. transboundary haze pollution is a matter of considerable concern in the asian region so that an asean agreement on transboundary haze pollution was created to deal with cross-border smoke pollution issues. however, according to the author, the regulation regarding transboundary haze pollution has not been maximized in the matter of resolving disputes and sanctions given to violators. there are no instruments of international law that regulate these issues so that strong national legal instruments are needed to punish violators. indonesia has several national instruments regarding protection from forest destruction, transboundary haze pollution, and corporate crime as described earlier. the author will summarize in order to make it easier for readers to identify and understand the substance and scope of each of the rules. indonesia has the law of the republic of indonesia number 41 of 1999 concerning forestry as the legal basis for safeguarding forestry in indonesia. this law regulates the principles of protection, obligation, role and responsibility of the government, companies and the public in protecting forest areas from damage. still, this law does not explicitly regulate cross-border smoke due to forest fires. the establishment of the republic of indonesia law number 32 of 2009 concerning environmental protection and management is aimed at providing protection to the environment and eradicating forest destruction which can harm the state and surrounding communities. this law regulates protection for the environment and prohibitions on environmental damage. this law regulates information on environmental quality standards that are good for humans. this law has not fully focused on dealing with forest destruction. law of the republic of indonesia number 18 of 2013 concerning prevention and eradication of forest destruction is a regulation that is formed as an implementing rule to protect forests from destruction due to forest use. this regulation has been focused on discussing forest protection from damage and criminalization of forest destroyers so that they become supporters and complementary of other regulations. republic of indonesia supreme court regulation no. 13 of 2016 concerning procedures for handling criminal cases by corporations is established as a supporting regulation in the implementation of corporate crimes and lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 59 procedures for investigation and investigation in corporate criminal acts. the following is a comparison between the law of the republic of indonesia number 41 of 1999 concerning forestry, law of the republic of indonesia number 32 of 2009 concerning protection and management of the environment, law of the republic of indonesia number 18 of 2013 concerning prevention and eradication of forest destruction, and the regulation ma republic of indonesia number 13 of 2016 concerning procedures for handling criminal cases by corporations contained in matrix 2. matriks 2. comparison of national regulations national regulation law of the republic of indonesia number 41 of 1999 concerning forestry law of the republic of indonesia number 32 of 2009 concerning protection and management of the environment law of the republic of indonesia number 18 year 2013 concerning prevention and eradication of forest destruction republic of indonesia supreme court regulation number 13 of 2016 concerning procedures for handling criminal cases by corporations types of forest fire unexplained unexplained unexplained unexplained fire prevention and forest rehabilitat ion efforts article 43 and 47 regulate forest rehabilitation and its protection article 14 and 54 regulate environmental prevention and recovery instruments article 18 arrange administrative sanctions in the form of rehabilitation costs due to damage unexplained transboun dary haze pollution arrangem ent unexplained unexplained unexplained unexplained environme ntal quality standard category unexplained article 20 regulates the type of environmental quality standards unexplained unexplained prohibitio n of forest burning article 50 regulates the prohibition of forest destruction article 69 regulates prohibitions on actions that result in environmental pollution unexplained unexplained dispute settlement arrangem ent article 74, 75, and 76 regulates that settlement of disputes can be carried out in court or outside the court article 84, 85, and 86 stipulates that dispute resolution can be carried out in court or outside the court article 10 and 39 regulating cases of forest destruction must take precedence and be completed quickly article 2 regulating the intent and purpose of the procedure for handling cases, filling in the legal vacuum, especially the criminal procedure of the corporation juridical analysis of the asean agreement on transboundary haze pollution and... miftah ramadhan 60 sanctions for forest burning crimes article 49, 78, 79, and 80 regulate accountabilit y and sanctions for violators article 53, 76, and 97-120 regulate administrative sanctions and criminal sanctions article 82 regulates criminal sanctions for cutting down trees by the permit article 4, 20, 24, and 27 regulating the corporation can be asked for accountability, compensation, and criminal arrangem ent of the handling of cases of criminal acts by corporatio ns unexplained unexplained article 82 regulating corporations can be punished entire article based on (matrix 2. comparison of international and national regulations) according to the authors, the national regulations are sufficiently competent to regulate the handling of the problem of transboundary haze pollution. the respective national regulations complement each other to punish criminal acts of environmental crime, especially forest fires by corporations. however, in the application of penalties for violators have not provided a deterrent effect from the actions they did. 2. juridical analysis of the asean agreement on transboundary haze pollution in indonesia regulations regarding smog due to forest fires have been contained in indonesia’s national regulations. the establishment of these regulations is the basis that indonesia has focused on preserving the environment, especially forests so that they are not damaged and can be enjoyed in the future. the establishment of regulations concerning the supervision and prosecution of all crimes committed by every legal subject in the forest indicates that indonesia has taken the legal treatment seriously in the event of a violation. the act of ratification by indonesia in the asean agreement on trans-boundary haze pollution became one of the assistance to the indonesian state in handling the prevention and prevention of all activities that could result in smog. the following is a comparison matrix between national and international regulations. matriks. 3. comparison of international and national regulations national regulation asean agreement on transboundary haze pollution law of the republic of indonesia number 32 of 2009 concerning protection and management of the environment types of forest fires article 1 unexplained fire prevention and forest rehabilitation efforts article 7, 13, and 16 arrange fire prevention measures and in the event of a fire can ask for help from neighbouring countries. article 14 and 54 regulate environmental prevention and recovery instruments. transboundary haze pollution arrangement article 1, 4, and 12 regulate transboundary haze pollution, cooperation in the implementation of monitoring, and emergency response. unexplained lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 61 environmental quality standard category unexplained article 20 regulates the type of environmental quality standards. prohibition of forest burning article 9 arrange for the state to make a policy against the cause of the fire. article 69 regulates prohibitions on actions that result in environmental pollution. dispute settlement arrangement unexplained article 84, 85, and 86 stipulates that dispute resolution can be carried out in court or outside the court. sanctions for forest burning crimes unexplained article 53, 76, and 97-120 regulate administrative sanctions and criminal sanctions. arrangement of the handling of cases of criminal acts by corporations unexplained unexplained based on (martiks. 3. comparison of international and national regulations) it can be concluded that national regulations have carried out their duties well in the application of forest protection so as not to cause forest fires and cause cross-border air pollution. the difference in the regulation is that national regulations do not justify any actions that cause forest fires to be under control so as not to endanger the surrounding area. indonesia keeps guarding against any forest burning in any form because it can harm the environment and humans. c. conclusion environmental law has regulated environmental health, which must be guarded especially in this case is the haze that is contained in the rio declaration on environment and development 1992 and the asean agreement on trans-boundary haze pollution. the rio declaration on environment and development 1992 stipulates that every country is obliged to protect the environment from being able to be enjoyed in the future and form the basis for the development of international regulations relating to environmental issues. the asean agreement on trans-boundary haze pollution invites all asean member countries to pay attention to cross-border smoke problems that often occur. this agreement discusses cross-border smoke criteria and their handling. if in its handling, a country cannot do it alone, then it can ask neighbouring countries to assist in handling pollution smoke due to forest risk. based on the asean agreement on transboundary haze pollution, indonesia has made crossborder smoke as a serious problem and has ratified the asean agreement on transboundary haze pollution in the republic of indonesia law number 26 of 2014 concerning ratification of the asean agreement on transboundary haze pollution. the act of ratification indicates that indonesia has been serious and focused on handling the problem of transboundary haze pollution. indonesia has several legal rules to deal with the problem of forest fires and the environment. the republic of indonesia law number 41 of 1999 concerning forestry is the basis for protecting and dealing with problems in forest destruction. law of the republic of indonesia number 32 of 2009 concerning protection and management of the environment as a regulation that protects the environment and criteria for environmental destruction both water, land, and in the air. the republic of indonesia law number 18 of 2013 concerning prevention and eradication of forest destruction was formed to focus more on addressing issues that could cause forest destruction and criminalize every subject who engages in activities in the forest causing damage to the forest. juridical analysis of the asean agreement on transboundary haze pollution and... miftah ramadhan 62 references a. journal alfia, ayu nurul., et.al. “tanggung jawab perusahaan transnasional dalam kebakaran hutan di riau dalam perspektif hukum internasional.” diponegoro law journal 5, no. 3 2016: 1-14. asdar. “transboundary haze pollution di malaysia dan singapura akibat kebakaran hutan di provinsi riau ditinjau dari hukum lingkungan internasional.” legal opinion 4, no. 3, 2015: 1-12. harnadi, kartiko. “model penguasaan tanah oleh masyarakat desa margosari dan penyelesaiaannya pada kawasan hutan lindung register 22 way waya kabupaten pringsewu,” cepalo 2, no. 2, 2019: 85–92, doi: 10.25041/cepalo.v2no2.1765. suryani, anih sri. “penanganan kabut akibat kebakaran hutan di wilayah perbatasan indonesia.” pusat pengkajian, pengolahan data dan informasi (p3di) sekretariat jenderal dpr ri 3, no. 1, 2012: 59-75, doi: 10.46807/aspirasi.v3i1.256. b. book akib, muhammad. hukum lingkungan perspektif global dan nasional, jakarta: raja grafindo persada, 2014. hardjasoemantri, koesnadi. hukum tata lingkungan. gajah mada yogyakarta: university press, 2001. hardjasoemantri, koesnadi. hukum tata lingkungan. yogyakarta: gajah mada university press, 2001. c. regulation asean agreement on transboundary haze pollution law of the republic of indonesia number 18 year 2013 concerning prevention and eradication of forest destruction law of the republic of indonesia number 32 of 2009 concerning protection and management of the environment law of the republic of indonesia number 41 of 1999 concerning forestry republic of indonesia supreme court regulation number 13 of 2016 concerning procedures for handling criminal cases by corporations rio declaration d. internet http://www.menlhk.go.id/siaran-81-pencegahan-karhutla-berhasil-tekan-angka-deforestasi.html, accessed on june 16, 2018. https://regional.kompas.com/read/2016/09/15/15573291/kebakaran.hutan.di.riau.dua.perusahaan.sa wit.jadi.tersangka, accessed on august 19, 2018. https://www.bbc.com/indonesia/dunia/2013/06/130621singapurahaz, accessed on august 10, 2018. https://doi.org/10.46807/aspirasi.v3i1.256 http://www.menlhk.go.id/siaran-81-pencegahan-karhutla-berhasil-tekan-angka-deforestasi.html https://regional.kompas.com/read/2016/09/15/15573291/kebakaran.hutan.di.riau.dua.perusahaan.sawit.jadi.tersangka https://regional.kompas.com/read/2016/09/15/15573291/kebakaran.hutan.di.riau.dua.perusahaan.sawit.jadi.tersangka https://www.bbc.com/indonesia/dunia/2013/06/130621singapurahaz 27 the role of the european union in handling syrian refugees ria silviana faculty of law, university of lampung, indonesia, email: riasilviana66@gmail.com submitted: february 6, 2019; reviewed: february 27, 2019; accepted: march 15, 2019 article info abstract keywords: eu, refugees, syrian. doi: 10.25041/lajil.v1i1.2022 the eu is a european regional organization which was initially formed due to the economic issue. after that, the eu’s focus expanded to the issue of refugees. nowadays, the eu’s problem of refugees was caused by the phenomenon of the arab spring or arab revolution that occurred in several arab countries. including syria, which is part of this phenomenon. as a result of the rebellion against the bashar al-assad government in syria, then causing humanitarian problems made the syrian people feel unsafe to live in their own country, so they sought protection in various countries, including going to european countries. they thought that europe is a safe area and looks better to provide protection for them. but not all of the eu member states are able and willing to accept the number of refugees that arrived in their country, even though the eu has the regulations regarding refugees protection. so, the eu’s role is needed to handle the syrian refugees in its member states. a. introduction the syrian warfare is because of a rebellion against the syrian government that begins with a demonstration of the people of syria prosecute the resignation of president bashar al-assad, the overthrow of his authorities and the end of five decades of ba’ath party. the united rebels under the banner of the syrian liberation military are struggling in an increasingly organized way. the syrian conflict is an internal violent conflict in syria. the public demonstration began on january 26, 2011, a nd developed into a national uprising. the syrian conflict was begun from the arab spring1 , which is ‘soulless’ with other revolutions in the middle east.2 as a result of the disputes arise various problems, one of them is human rights violations. many civilians were killed, lost their families and also lost their homes, so they had to leave the country because they felt insecure. so, they leave their country and go to other countries to get protection and asylum. they go to various countries, ranging from arab countries to europe. nine million syrians have abandoned their homes since the begin of the conflict in march 2011. they are sheltered in neighbouring countries or in syria.3 more than 4 million syrian refugees are in 1 arab spring is an arab revolution phenomenon that occurs in several the middle east and north african countries, where the countries are transformed from a dictatorial system into a people's sovereignty (democracy). this phenomenon began in tunisia, egypt, libya, yemen, bahrain, and syria. 2 masni handayani kinsal, “penyelesaian konflik internal suriah menurut hukum internasional”, lex et societatis. 2, no. 3, (2014): 104-112, 104. 3 http://data.unhcr.org/syrianrefugees/regional.php, accessed on november 23, 2015 at 19:00 wib. volume 1 issue 1, 2019: pp. 27-34. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 2656-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:riasilviana66@gmail.com https://doi.org/10.25041/lajil.v1i1.2022 http://data.unhcr.org/syrianrefugees/regional.php, the role of the european union in handling syrian refugees ria silviana 28 contiguous of syria.4 the location of syria is close to the arabian gulf states, namely saudi arabia, the united arab emirates, qatar, oman, bahrain, and kuwait. however, syrian refugees over the past few years have crossed instead into lebanon, jordan, and turkey. visa restrictions make it difficult for syrians to entering arabian gulf countries and the policy for refugees stems from the complexities, and the number of the migrant is higher than the local civilians in small countries like qatar and the united arab emirates. as well as arabian gulf states are not a party to international conventions about refugees,5 the population of the arab countries is few, so they are unable to accommodate the number of refugees who number up to millions.6 syrian refugees are looking for other countries that can protect them, namely european countries. there are some reasons why syrian refugees seeking asylum in europe, the conditions of syrian refugees’ camps in arab countries are very concerned, drink and food supplies are insufficient. the reservation for asylum in the arabian gulf countries is more severe than european countries, and for them go to europe is easier than to arabian gulf, because if they go to arabian gulf, they have to through other conflict countries (lebanon and iraq), if they go to europe they just cross over the sea to arrive in destination countries.7 a total of 38 european countries noted that 264 thousand applications of asylum requests had been submitted. compared with 2013, the increase reached 24%. of these, 264,000 of them are filed in 28 european union (eu) the member states. germany, france, sweden, italy, and the uk are the top five eu countries that accept asylum applications. antonio guterres, director of the united nations high commissioner for refugees (unhcr), has even asked the eu to solve the crisis of refugee. syria became the country that requested the most for asylum in 11 of the 28 eu member states, including 41 thousand requests submitted to germany and 31 thousand to sweden. germany can accommodate up to 500 thousand refugees a year and the authorities in charge of migrants, migrations verket, allow families of syrian residents who have become permanent residents to move to the country.8 based on unhcr data on december 31, 2016, 362,753 people arrived in europe come through the mediterranean sea. and last data in may 2017, 1,344 people died and disappeared, 5,765 people arrived in greece by sea, 45,048 people arrived in italy by sea, 2,352 people arrived in spain by sea, and 302 people arrived in cyprus by sea. but some european countries refuse refugees who enter their territory due to some factors, which can not bear the additional economic burden. the unemployment crisis in some countries, the burden of social security for pensioners increases, with the presence of refugees can disrupt the political and socio-cultural stability, and there as well as for racist reasons, such as the slovaks who only accept the christian refugees.9 relating to the refugee issue, the eu has a regulation on asylum and refugees that is contained in the article 78 (1) tfeu (treaty on the functioning of the european union), the treaty of lisbon which said that the eu should expand a common policy on asylum, supplementary protection, and provisional protection to offer the appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulment. the policy that the eu makes should be in accordance with the convention and protocol on refugees, and the other treaties relating to asylum.10 the eu even has an asylum system called the common european asylum system (ceas), so the member states have an obligation to provide asylum applications for refugees who enter their territory. in addition, all of the eu member states have ratified the convention 1951 and the protocol 1967.11 eu, as a regional organization for european countries, has the authority to solve problems in 4 http://www.unhcr.org/560523f26.html, accessed on november 23, 2015 at 19:19 wib. 5 http://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, accessed on november 23, 2015 at 19:26 wib. 6 http://www.cnnindonesia.com/internasional/20150908131728-134-77324/mengapa-imigran-ke-eropa-bukan-ke-timurtengah/, accessed on november 6, 2016 at 08:28 wib. 7 http://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapa-pengungsi-muslim-timteng-lebihmemilih-eropa, accessed on november 6, 2016 at 08:15 wib. 8 http://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, accessed on november 23, 2015 at 19:26 wib. 9 http://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapa-pengungsi-muslim-timteng-lebihmemilih-eropa, accessed on november 6, 2016 at 08:15. 10 article 78 (1) tfeu. 11 www.unhcr.org/protect/protection/3b73b0d63.pdf, accessed on may 29, 2017 at 10:31 wib. http://www.unhcr.org/560523f26.html, http://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, http://www.cnnindonesia.com/internasional/20150908131728-134-77324/mengapa-imigranhttp://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapahttp://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, http://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapahttp://www.unhcr.org/protect/protection/3b73b0d63.pdf, lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 29 the european region, especially the problems of its member states. refugee problems occurring in some european countries are not only a problem for refugee recipient countries, as european countries have been integrated into a regional organization. regionally refugee issues are also discussed on eu agendas. so much needed the role of the eu in protecting refugees coming from syria. based on the description above, the issues to be discussed in this paper are as follows: first, how are refugee protection rules in international law; second, how is the eu role in handling the syrian refugees. the research method used is normative legal research methods and the data obtained is secondary data derived from literature sources such as literature, articles, and internet sites. b. discussion 1. refugee protection rules in international law the refugee is a status recognized by international and/or national law. a person who has been recognized his/her status as a refugee will accept the obligations and assigned rights. a refugee is at once an asylum seeker. before a person is recognized as a refugee, he is an asylum seeker first. instead, an asylum seeker is not necessarily a refugee. it is recognized only after its status recognized by an instrument of international law and/or national law. a person who has been recognized his/her status as a refugee will receive the rights and protection of his/her rights and the specified obligations.12 a refugee is an individual who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a specific social organization or a political opinion, is outside his or her country, and unwilling to use the protection of that country or who no longer having a nationality and being outside the country of his former ordinary residence because of such activities, is not able or, owing to such worry, is unwilling to go back to it.13 refugee protection rule is accommodation in the convention on the status of refugees (convention 1951) and protocol relating to the status of refugees (protocol 1967).14 there is some protection afforded by this convention. first, there is no discrimination.15 second, the personal status of the refugees is regulated in accordance with the law where they are domiciled.16 third, a refugee has the same right to have both movable and immovable property and keep it as well as others and can also transfer his assets to the country where he/she will reside.17 fourth, states parties to the convention shall recognize the freedom of refugees to associate by establishing associations, including trade associations, as long as they are non-profit and non-political.18 fifth, a refugee will have the freedom to go to court in front of the judiciary—sixth, entitled to get a job.19 seventh, every refugee will be treated as same as the other citizens for the right of education.20 eighth, every refugee will be able to enjoy the rights of social welfare.21 ninth, every refugee is entitled to identity papers and travel documents.22 in addition to these rights, the convention also provides for refugee obligations in article 2 which said that each refugee is obligated to comply with all of laws and regulations or provisions to create public order in the country where they live.23 basically law is a reflection of human rights, so that law contains justice to protect a human rights.24 the refugee protection arrangements are also accommodated in the statute of unhcr. 12 aryuni yuliantiningsih, “perlindungan pengungsi dalam perspektif hukum internasional dan hukum islam”, jurnal dinamika hukum 13, no. 1, (2013): 159-170, 162, doi: 10.20884/1.jdh.2013.13.1.164. 13 article 1 refugees convention 1951. 14 wagiman, hukum pengungsi internasional (jakarta: sinar grafika, 2012), 106. 15 article 3 and 4 refugees convention 1951. 16 article 12 refugees convention 1951. 17 article 13, 14, 30 refugees convention 1951. 18 article 15 refugees convention 1951. 19 article 17, 18, 19 refugees convention 1951. 20 article 22 refugees convention 1951. 21 article 20 and 22 refugees convention 1951. 22 article 27 and 28 refugees convention 1951. 23 article 2 refugees convention 1951. 24 eka intan et al., “begal anak; pemenuhan hak dan lembaga pembinaan khusus anak kelas ii a bandar lampung fulfillment of the rights of the child in the class ii special child coaching institution in bandar lampung,” cepalo 2, no. 2 (2018): 45–84, 76, doi: the role of the european union in handling syrian refugees ria silviana 30 unhcr has procedures to provide assistance relating to the fulfilment of human rights in the form of international protection. in general, this concept includes the prevention of repatriation, assistance in the processing of asylum-seeking, legal aid and advice, promotion of physical security for refugees, promotion and voluntary redeployment, and assisting resettlement for refugees.25 refugee protection in the statute of unhcr includes the authority of unhcr in the handling of refugees. it is contained in article 6 of the statute of unhcr. 2. the role of the european union in handling syrian refugees the eu comprises 28 unique independent states with approximately 507.4 million people living within its borders. the beginning of its foundation can be traced back to the end of the second world war when its proponents (belgium, germany, france, italy, luxembourg and the netherlands) decided that the best way to prevent conflict was to manage coal and steel production jointly.26 at first, the eu as an organization cooperated based on the three pillars of economic, political and sociolegal pillars, which were the result of the treaty of maastricht.27 although the initial purpose of the european union was economic cooperation and then developed its focus on global issues such as environmental issues, energy, asylum and so on, one of the issues that are the focus of the eu is currently the problem of asylum or refugee. in 2014, the eu was faced the most significant number of refugees since the end of the second world war. more than a million refugees and migrants arrive in the european union and the majority of the refugees coming from syria.28 syrian refugees went to europe using ground transportation such as buses and cars to greece passing turkey. after arriving in europe/greece, syrian refugees went on to sweden and germany.29 the eu made various efforts in handling the problem of syrian refugees which entering their territory. syrian refugees arriving in the eu need the most basic needs, such as clean water, food, and shelter. the eu has funded humanitarian assistance projects for 50,000 refugees and migrants arrived in greece in may 2016. the eu also provides humanitarian assistance to refugees and migrants in countries outside the eu, such as turkey, lebanon, jordan, and iraq. turkey became the country with the largest number of refugees, about 3 million, of which 2.5 million are syrian refugees. in order to help refugees in turkey, the eu and its member countries provide € 6 billion from 2016 to 2018. the eu has spent more than € 10 billion from the eu budget to deal with the refugee crisis in 2015 and 2016.30 eu member countries have agreed to do relocation for 160,000 asylum seekers from greece and italy to the other eu countries in september 2017, according to the european commission proposal in 2016 concerning the fairness refugees allocation in eu member states. however, in july 2016, only 3,000 asylum seekers have been relocated. the eu also wants to create safe and official ways for asylum seekers to enter the eu, so that they do not have to risk the safety of their lives, such as being smugglers and traders.31 one of how the eu is preventing more refugees from entering europe is to enter into agreements with turkey. in march 2016, the eu and turkish leaders agreed on an agreement to address a large number of immigrants entering europe. starting on march 20, 2016, all of t h e new immigrants who arrive on the greek islands, if they do not submit an asylum request or if their asylum claim is rejected, they will be returned to turkey. every syrian refugee from the greek islands is returned to turkey, while some syrian refugees will be relocated in the eu countries.32 turkey will take 10.25041/cepalo.v2no2.1764. 25 wagiman, op. cit., 189-190. 26 http://eeas.europa.eu/archives/delegations/indonesia/documents/more_info/pub_2015_euataglance_id.pdf, accessed on april 28, 2017 at 13:10 wib. 27 robert schuman, the lisbon treaty: 10 easy-to-read fact sheet (france: fondation robert schuman, 2009), 3. 28 http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en, accessed on april 9, 2017 at 14:11 wib. 29 ani kartika sari. “upaya uni eropa dalam menangani pengungsi dari negara-negara mediterania selatan di kawasan eropa”. ejournal ilmu hubungan internasional 3, no. 3, (2015): 548-550, 548. 30 http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en, accessed on april 9, 2017 at 14:11 wib. 31 ibid. 32 http://www.consilium.europa.eu/en/policies/migratory-pressures/countries-origin-transit/eu-turkey-statement/, accessed on august 11, 2017 at 06:30 wib. http://eeas.europa.eu/archives/delegations/indonesia/documents/more_info/pub_2015_euata http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en,%20accessed%20on%20april%209 http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en, http://www.consilium.europa.eu/en/policies/migratory-pressures/countries-origin-transit/eulampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 31 tougher measures to prevent the opening of the new sea and land routes for immigrants from turkey to the eu. instead, the eu will accelerate the disbursement of €3 billion allocated to address humanitarian and development needs in turkey. the eu is also committed to providing an additional fund up to €3 billion to turkey to help socio-economic conditions due to a large number of syrian refugees in the country by the end of 2018.33 in addition to the above efforts, the eu is also reforming its rule on asylum. the eu rule concerning refugees is contained in article 78 (1) of the tfeu treaty of lisbon. it is said that the eu must develop general policies on asylum, additional protection, and temporary protection with a meant to offer befitting status to any third-country national requiring international protection and assure compliance with the principle of nonrefoulment. this policy must be conformable with convention 1951 and protocol 1967 relating to the status of refugee, as well as all of eu member states have ratified the convention. so, the eu member states should fulfil the obligations that laid down by the convention. in the effort to handle refugees, the eu and unhcr apply the system of asylum ceas (common european asylum system) implemented by easo34 (european asylum support office). the system is based on the provisions of the convention 1951 and protocol 1967. eu institutions such as the council of europe, the european commission, the european parliament, and the european court have the legislative, executive and judicial powers relevant to the mandate granted by unhcr. so, unhcr follows eu asylum law and policy.35 ceas began to be implemented in 1999. the eu at that time, wanted an asylum system that could address the problems in the acceptance of asylum in the european region. therefore the eu decided to harmonize their asylum system based on binding legislation.36 it consists of several rules in ceas, namely asylum procedure directive, reception condition directive, qualification directive, dublin regulation, and eurodac regulation.37 but, the rules was by no means designed to deal with a massive number of people arriving in a short time period. the commission is working on a suggestion to revise the existing asylum rules in accordance with current and future needs. the fundamental principle will remain equal – everyone must follow for asylum inside the first eu member states. they enter until they have got family somewhere else – however, whenever a member kingdom is overwhelmed, there need to be solidarity and honest sharing of responsibilities in the eu.38 on may 4, 2016, the european commission presented a proposal to reform the common european asylum system (ceas) by creating a fairer, more efficient and more sustainable system to allocate asylum applications among member countries. the proposal also includes changes to the dublin regulation/dublin system, changes to the eurodac regulation/eurodac system, and change the existing european asylum support office (easo) to the european union agency for asylum.39 the dublin system is an eu rule to determine which member states are responsible for handling any asylum applications and is not designed to determine the continuous sharing of responsibilities across the eu and ensure timely processing of the application. the proposal will make the dublin system more transparent and improve its effectiveness while providing a mechanism for dealing with a situation of excessive pressure on member countries’ asylum systems. this new system is designed to be fairer and stronger, more able to withstand refugee flows. and it will ensure the determination of the member states’ responsibility to examine asylum applications and protect those in need of protection.40 33 ibid. 34 easo is the eu agency established by the european parliament and council under the regulation (eu) no 439/2010. this body plays a role in implementing the european common asylum system (ceas). easo was established with the aim of enhancing collaborative practice on asylum issues and helping member countries fulfill their european and international responsibility in providing protection to people in need. easo also support the member countries whose asylum system and its acceptance is under pressure. 35 http://www.unhcr.org/publications/brochures/4e609f0d6/unhcr-european-union.html, accessed on april 9, 2017 at 14:30 wib. 36 federica toscano, the second phase of the common european asylum system: a step forward in the protection of asylum seekers? (brussels: institute of european studies, 2013), 12. 37 https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/backgroundinformation/docs/20160713/factsheet_the_common_european_asylum_system_en.pdf, accessed on april 25, 2017 at 10:54 wib. 38 http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en, accessed on april 9, 2017 at 14:11 wib. 39 http://europa.eu/rapid/press-release_ip-16-1620_en.htm, accessed on april 25, 2017 at 11:12 wib. 40 ibid. http://www.unhcr.org/publications/brochures/4e609f0d6/unhcr-european-union.html http://europa.eu/rapid/press-release_ip-16-1620_en.htm the role of the european union in handling syrian refugees ria silviana 32 in addition, to support the adoption of the reformed dublin system, the commission also proposes to adapt and strengthen the eurodac system and expand its purposes, returns facilitate and controlling the irregular migration. the proposal would extend the scope of the eurodac regulation that allows member states to store and retrieve data belonging to citizens of third countries or stateless persons who are not asylum seekers to get international protection and inadvertently reside in the eu, so that they can be identified for relocation and return purposes.41 one of the contents of the proposal is to change the existing european asylum support office (easo) to the european union agency for asylum by adding an expanded mandate and duty to address the structural weaknesses that arise in the implementation of the eu asylum system. one of the agency’s main tasks is to operate a fair asylum mechanism under the new dublin system.42 easo is an eu body established by parliament and the council of europe in 2010 based on regulation (eu) no. 439/2010.43 this body was formed to protect and deal with refugee issues in the european region and to play a role in implementing ceas. one of the refugee problems handled by easo is the relocation for refugees. it is based on the uneven number of refugees as well as the financial problems of the recipient countries, making the reason for the relocation. this refugee relocation activity by easo is the result of cooperation with the home country and third country to relocate refugees. this is done to refugees to get the right handling.44 the things that the eu has attempted to handle syrian refugees conform with article 78 of the tfeu, treaty of lisbon, which said that the european union in the international safeguard policy of refugees should respect the principle of non-refoulment by not returning refugees to their home countries, and the convention 1951 and protocol 1967 relating to the status of refugees. the eu member states are the states parties of the convention shall have the responsibility to provide refugee protection as prescribed by the convention and states parties shall undertake a general asylum policy established by the eu. c. conclusions the refugee protection rules in international law are stipulated in the convention 1951 and protocol 1967 relating to the status of refugee, and the statute of unhcr. the convention 1951 and the protocol 1967 contain refugee rights, refugee duties, and refoulement restrictions. states parties to the convention shall exercise the provisions contained in the convention. and refugee protection in the statute of unhcr includes the authority of unhcr in handling refugees. the eu plays a role in handling syrian refugees who enter their territory. article 78 of the tfeu, treaty of lisbon said that the eu must provide refugee protection and in refugee, policy-making shall be in accordance with the principle of non-refoulment, convention 1951 and protocol 1967 relating to the status of refugee. the measures of the eu has taken in handling syrian refugees are providing humanitarian aid, rescuing refugees at sea, resettlement and relocation. they make an agreement with turkey concerning syrian refugees and reforming eu rules on asylum/ceas (i.e. reforming the dublin system and the eurodac system) and change the asylum support office (easo) to the european union agency for asylum. 41 ibid. 42 ibid. 43 european asylum support office, european asylum support office (malta: european asylum support office, 2019), 2. doi: 10.2847/6267 44 ani kartika sari. op. cit., 554-555. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 33 references a. journal kinsal, masni handayani. “penyelesaian konflik internal suriah menurut hukum internasional”. lex et societatis 2, no. 3, 2014: 104-112. intan, eka et al., “begal anak; pemenuhan hak dan lembaga pembinaan khusus anak kelas ii a bandar lampung fulfillment of the rights of the child in the class ii special child coaching institution in bandar lampung,” cepalo 2, no. 2, 2018: 45–84, doi: 10.25041/cepalo.v2no2.1764. sari, ani kartika. “upaya uni eropa dalam menangani pengungsi dari negaranegara mediterania selatan di kawasan eropa”. ejournal ilmu hubungan internasional 3, no. 3, 2015: 547-558. yuliantiningsih, aryuni. “perlindungan pengungsi dalam perspektif hukum internasional dan hukum islam”. jurnal dinamika hukum 13, no. 1, 2013: 159170, 162, doi: 10.20884/1.jdh.2013.13.1.164. b. book european asylum support office. european asylum support office. malta: european asylum support office. 2019, doi: 10.2847/6267. schuman, robert. the lisbon treaty: 10 easy-to-read fact sheet. france: fondation robert schuman, 2009. schuman, robert. the lisbon treaty: 10 easy-to-read fact sheets, 2009. toscano, federica. the second phase of the common european asylum system: a step forward in the protection of asylum seekers? brussels: institute of european studies, 2013. wagiman. hukum pengungsi internasional. jakarta: sinar grafika, 2012. c. regulation convention 1951 and protocol 1967 relating to the status of refugee. statute of unhcr. treaty on the functioning of the european union, treaty of lisbon 2007. d. internet http://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, accessed on november 23, 2015. http://beritagar.id/artikel/berita/mengapa-pengungsi-suriah-pilih-eropa, accessed on november 23, 2015. http://data.unhcr.org/syrianrefugees/regional.php accessed on november 23, 2015, at 19:00 wib. http://eeas.europa.eu/archives/delegations/indonesia/documen/more_info/pub_2015_euataglance_i d.pdf, accessed on april 28, 2017. http://europa.eu/rapid/press-release_ip-16-1620_en.htm accessed on april 25, 2017. http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en, accessed on april 9, 2017. http://www.bbc.com/indonesia/dunia/2015/11/151129_dunia_turki_unieropa accessed on april 9, 2017. http://www.cnnindonesia.com/internasional/20150908131728-134-77324/mengapa-imigran-keeropa-bukan-ke-timur-tengah/, accessed on november 6, 2016. http://www.consilium.europa.eu/en/policies/migratory-pressures/countries-origin-transit/eu-turkeystatement/, accessed on august 11, 2017. 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http://europa.eu/rapid/press-release_ip-16-1620_en.htm http://publications.europa.eu/webpub/com/factsheets/refugee-crisis/en http://www.bbc.com/indonesia/dunia/2015/11/151129_dunia_turki_unieropa http://www.cnnindonesia.com/internasional/20150908131728-134-77324/mengapa-imigran-ke-eropa-bukan-ke-timur-tengah/ http://www.cnnindonesia.com/internasional/20150908131728-134-77324/mengapa-imigran-ke-eropa-bukan-ke-timur-tengah/ http://www.consilium.europa.eu/en/policies/migratory-pressures/countries-origin-transit/eu-turkey-statement/ http://www.consilium.europa.eu/en/policies/migratory-pressures/countries-origin-transit/eu-turkey-statement/ http://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapa-pengungsi-muslim-timteng-lebih-memilih-eropa http://www.republika.co.id/berita/kolom/resonansi/15/09/14/nunms4319-mengapa-pengungsi-muslim-timteng-lebih-memilih-eropa http://www.unhcr.org/560523f26.html http://www.unhcr.org/pages/4dd12ad46.html https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/20160713/factsheet_the_common_europe%20an_asylum_system_en.pdf https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/20160713/factsheet_the_common_europe%20an_asylum_system_en.pdf https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/20160713/factsheet_the_common_europe%20an_asylum_system_en.pdf http://www.unhcr.org/protect/protection/3b73b0d63.pdf the role of the european union in handling syrian refugees ria silviana 34 63 review of indonesia's employment arrangements in facing asean economic community ayu permatasari1, chatrina febriani pratiwi2, medika era wijaya3 1faculty of law, universitas lampung, indonesia, e-mail: ayupermatasariat@gmail.com 2faculty of law, universitas lampung, indonesia, e-mail: pratiwichatrina@gmail.com 3faculty of law, universitas lampung, indonesia, e-mail: medikaerawijaya1010@gmail.com submitted: june 15, 2021; reviewed: july 9, 2021; accepted: august 12, 2021 article info abstract keywords: overview, employment arrangements, aec. doi: 10.25041/lajil.v3i2.2365 the aec is the founder of the asean community and the formation of regional economic integration, which was implemented in 2015. the implementation of asean is made up of the flow of services/goods on a single product and market basis, skilled labour, investment, and free capital flows between countries in the asean region. as an opportunity at the time of employment and as a substitute for unemployment, the indonesian state must be utilized free of skilled labour. the issues that have arisen are how the employment arrangements in indonesia are? how to optimize indonesia’s employment arrangements in the aec era? the method of approaching this research is the normative juridical method. the research shows that there are arrangements in the field of manpower that help realize quality human resources and skilled labour. it also states that law no. 13 of 2003 on manpower and other policies that provide job training and certification of work competencies that optimize employment to be more qualified, skilled, and competitive and recognized by other asean countries in facing the aec. a. introduction according to law no. 13 of 2003 concerning manpower, anyone can do work to produce goods or services to meet their own needs and those of the community. human resources are services/work provided to the production system. human resources can also provide quality in business to people within a particular time to obtain goods or services, and human resources link someone who can work to be given a working business/service. able to work is someone who can carry out activities that have economic value, for example, activities that can obtain goods or services to fulfill the needs of people's lives. human resources consist of employees and labourers who can produce services and work for other parties, namely the government, state companies, and private companies. the definition of human resources (hr) contains aspects of quality in the work services provided to produce and aspects of quantity in the volume 3 issue 2, july-december 2021: pp. 63-72. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:ayupermatasariat@gmail.com mailto:pratiwichatrina@gmail.com mailto:medikaerawijaya1010@gmail.com review of indonesia’s employment arrangements… ayu permatasari, chatrina febriani p., medika era w. 64 number of people who can work.1 the quality human resources are expected to produce products capable of competing in the asean market.2 the asean economic community (aec) is an achievement of the target in 2015 and has already started its implementation in regional economic integration. as a result of its accomplishment, asean can become a single base and single market where there has been a flow of goods or services, skilled labour, and free capital and investment flows. asean is also expected to decrease the increase in economic factors and differences in socio-economics in the asean region. as much as possible can be utilized in the formation of regional economic integration. the integration of the asean economic region would have some legal consequences, and the business as an actor or business people coming from different countries, which would undoubtedly have some differences.3 considering that indonesia is the largest in asean, which has an area and geographical location, population size, and gdp value, it can be an asset for indonesia to become a significant player in the aec.4 in particular, the southeast asian region is experiencing a crisis in the economy. in october 2003 was known as the bali concord-ii when it was declared in bali. then in commemoration of the 40th anniversary of the founding of asean, the establishment of regional cooperation was further strengthened by being signed by the asean charter. the asean charter's conventions and signings aim to integrate the region, informing the asean community and intensifying the formation of communities by increasing cooperation. coinciding with the signing of the asean charter, the blueprint is a guide for the aec. it tends to encourage asean heads of state to agree to establish an asean community in the fields of the asean economic community, asean socio-cultural, and political security. the blueprint consists of four pillars: (i) a single market and production base; (ii) a highly competitive economic region; (iii) an economically equitable region; and (iv) a region fully integrated into the global economy. economic measures to advance asean's goal of establishing an aec are included in each pillar.5 strategic schedule regarding the stages and time of achievement between each pillar that has been agreed.6 in 2015, asean member countries agreed to the 2025 asean economic community blueprint. the 2025 aec blueprint will build on the 2015 aec blueprint, which consists of five interrelated and mutually reinforcing characteristics, namely: 7 (a) a unified and fully integrated economy; (b) a competitive, innovative, and dynamic asean; (c) improved sectoral connectivity and cooperation; (d) a resilient, inclusive, people-oriented, and people-centered asean; and (e) global asean. 1 anditya putra, “implementasi kebijakan ketenagakerjaan di kabupaten sumedang,” prosiding penelitian dan pengabdian kepada masyarakat 2, no. 3 (2015), https://doi.org/10.24198/jppm.v2i3.13595. 2 tobari, muhammad kristiawan, and nova asvio, “the strategy of headmaster on upgrading educational quality in asean economic community (aec) era,” international journal of scientific & technology research 7, no. 4 (2018): 72. 3 sahlan, “preparation of international business contracts in facing the asean economic community era,” hasanuddin law review 2, no. 3 (2016): 426, https://doi.org/10.20956/halrev.v2i3.702. 4 rian destiningsih, “pengaruh sektor industri terhadap peningkatan tenaga kerja di kabupaten magelang,” jurnal humaniora : jurnal ilmu sosial, ekonomi dan hukum 4, no. 2 (2020), https://doi.org/10.30601/humaniora.v4i2.1070. 5 deunden nikomborirak, “the asean economic community (aec): myths and realities,” asian economic papers 14, no. 2 (2015): 73, https://doi.org/10.1162/asep_a_00348. 6 husnayetti, “masyarakat ekonomi asean 2015 dan daya saing sumber daya manusia,” jurnal liquidity 3, no. 2 (2014), https://doi.org/10.32546/lq.v3i2.94. 7 setyani agung dwi astuti, “dampak covid-19 terhadap ketenagakerjaan dan umkm di mojokerto,” jurnal inovasi penelitian 1, no. 9 (2021), https://doi.org/10.47492/jip.v1i9.236. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 65 as of december 31, 2017, 72 of the 118 priorities (61%) of aec implementation have been successfully implemented. twelve of the 46 unimplemented priorities have been implemented by several asean member countries. so far, indonesia has implemented 85 of the 118 priorities.8 aec 2025 continues aec 2015 and aims to make the asean economy more integrated and cohesive; competitive and dynamic; increased connectivity and sectoral cooperation; resilient, inclusive, community-oriented, and centered; and global asean.9 scope of asean economic cooperation: asean economic cooperation covers industry, trade, investment, services and transportation, telecommunications, tourism, and finance. in addition, this cooperation covers the fields of agriculture and forestry, energy and minerals, and micro, small and medium enterprises (msmes). we can see the profile of the asean economy as follows: a. the large population of asean, which is 632 million people (2015), the majority are of productive age; b. the economic growth of asean countries is relatively high, averaging 5% 6% per year. to encourage equality of development among member countries (narrowing the development gap), asean has the initiative for asean integration (iai). iai aims to create equitable development between asean-6 (brunei darussalam, indonesia, malaysia, philippines, singapore, and thailand) and clmv (cambodia, laos, myanmar, and vietnam). c. implementation of the initiative for asean integration: the initiative for asean integration is implemented in capacity-building training projects, institutional development assistance, policy advice, and feasibility studies. d. initiative for asean integration project funding: project implementation generally receives funding from asean-6, dialogue partners, or international institutions within the framework of the iai as well as bilaterally. e. initiative for asean integration projects: initially, the initiative for asean integration project was implemented in the economic fields such as infrastructure development, human resources, capacity building for regional integration, energy, investment climate, tourism, poverty alleviation, and quality of life improvement. in its development, the iai project was expanded to cover the political-security and socio-cultural fields. in addition, based on indonesia's proposal, asean has approved the asean framework on equitable economic development (afeed). the framework puts forward efforts to reduce development gaps, strengthen the quality of human resources, improve social welfare, develop micro, small and medium enterprises (msmes), and more involvement in the asean integration process. in general, economic development aims to increase the standard of living and improve the quality of life, which can be interpreted as the degree to which basic needs are met. without additional employment opportunities, economic growth will result in an unequal distribution of the additional income. the inequality that occurs can create economic growth with an increase in poverty. the economic structure of a country is reflected in, among other things, the employment structure. as the 4th most populous country in the world, indonesia has a vast workforce. in general, the indonesian job market is characterized by a very high supply of employment, massive unemployment, and low quality of employment. improving the quality of human resources, both domestic and foreign workers should receive earnest attention from the private sector and the government. the impact of the implementation of the asean economic people to compete with workers who can enter 8 yuliana yuli, “regulasi pendidikan nasional sebagai upaya meningkatkan sumber daya manusia memasuki era masyarakat ekonomi asean (mea),” jurnal yuridis 3, no. 1 (2016), https://doi.org/10.35586/.v3i1.171. 9 vivi regina haryati, “implementasi masyarakat ekonomi asean terhadap elemen tenaga kerja terdidik di indonesia,” jurnal ekonomi pembangunan 17, no. 2 (2019), https://doi.org/10.29259/jep.v17i2.9508. review of indonesia’s employment arrangements… ayu permatasari, chatrina febriani p., medika era w. 66 from abroad. efforts are needed to do that by improving the quality of human resources of the workforce. the implementation of various policies that have been held in the field of employment is required to be optimized to develop human resources and improve the quality of indonesia to be able to prepare a skilled workforce. they can compete at the global level, especially in facing the asean economic people. the implementation of the labour law must be optimized so that it can be used to improve on-the-job training, the formation of a skilled workforce, and the formation of lsps to compete in the free flow of skilled labour in the face of the aec. the problem in this paper is how the employment arrangements in indonesia are? and how to optimize indonesia’s employment arrangements in the aec era? the approach method in this research is the normative juridical method. sources were obtained by using primary data and secondary data. primary data is obtained from the research results in the field directly, and secondary data is obtained from the research results based on the literature. the data are in the form of library research and field studies. b. discussion 1. employment arrangements in indonesia the welfare state law theory is related to 2 concepts, namely the legal state and the welfare state. the rule of law is a state that occupies the law as the organizer of power and the basis of power in all its forms. at the same time, the concept of a welfare state is a state that is public order and a bearer of responsibility for realizing general welfare, people's prosperity, and social justice. as stated in the 1945 constitution of the republic of indonesia, the indonesian state aims to reflect the type of welfare state.10 to face the challenges of globalization through internal strengthening, indonesia must improve its quality in human resources that have global competitiveness. the government has a vital role in preparing and dealing with the asean single market in 2015. this agreement is to ensure conducive sustainable development, realize prosperity and decent life, and world prosperity. during the process of forming the asean community, society is at its center. indonesia is allowed to conduct regional cooperation. the definition of manpower is stated in the "manpower law" that manpower includes residents who are already working or who are currently working or someone looking for work and carrying out other jobs. therefore, in the state of indonesia, the minimum age limit is 15 years to a maximum of 55 years.11 manpower in indonesia is regulated in several regulations as follows:  law no. 13 of 2003 concerning manpower  law no. 2 of 2004 concerning settlement of industrial relations disputes  law no. 21 of 2000 concerning trade unions/labour unions  law no. 40 of 2004 concerning the social security system  law no. 39 of 200 concerning the placement and protection of indonesian migrant workers abroad  law no. 21 of 2003 concerning ratification of the ilo convention no. 81 concerning labour inspection in industry and commerce  law no. 1 of 2000 concerning ratification of the ilo convention no. 182 concerning the prohibition and immediate action for elimination of the worst forms of child labour 10 sri maulidiah, “administrasi ketenagakerjaan di kota pekanbaru,” jurnal publika 1, no. 2 (2015), https://doi.org/10.25299/jiap.2015.vol1(2).1562. 11 najmi ismail, “hukum dan fenomena ketenagakerjaan,” focus: jurnal pekerjaan sosial 1, no. 3 (2018), https://doi.org/10.24198/focus.v1i3.20494. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 67  law no. 21 of 1999 concerning ratification of the ilo convention no. 111 concerning discrimination in respect of employment and occupation  law no. 20 of 1999 ratification of the ilo convention no. 138 concerning the minimum age for admission to employment  law no. 19 of 1999 concerning ratification of the ilo convention no. 105 concerning the abolition of forced labour  government regulation no. 46 of 2015 concerning the implementation of the old age security program  government regulation no. 45 of 2015 concerning the implementation of the pension guarantee program  government regulation no. 44 of 2015 concerning the implementation of the employment security and death security program  government regulation no. 4 of 2015 concerning the implementation of supervision of the placement and protection of indonesian migrant workers abroad  presidential regulation no. 72 of 2014 concerning the use of foreign workers and the implementation of education and training for companion workers  presidential regulation no. 111 of 2013 concerning amendments to presidential regulation number 12 of 2013 concerning health insurance  presidential regulation no. 21 of 2010 concerning labour inspection  presidential regulation no. 81 of 2006 concerning the national agency for the placement and protection of workers  presidential regulation no. 64 of 2011 concerning health and psychological examination of prospective indonesian migrant workers  presidential regulation no. 45 of 2013 concerning the coordination of the return of indonesian migrant workers  presidential regulation no.12 of 2013 concerning health insurance the workforce is classified into 2, namely from labour force and non-labour force. the labour force includes the unemployed or someone who is looking for work and who is working. meanwhile, those not in the labour force include people who are still carrying out other jobs, such as school and taking care of the household.12 the impact of the enactment of the asean economic community is the free movement of skilled workers between countries, namely the creation of guts to service delivery through reductions or obstacles. it is specific in mode 4 of individual service providers, namely workers from abroad who provide specific skills and then come to their consumer countries. according to budiono, a foreign worker is "a person who is not an indonesian citizen but can work both inside and outside the employment relationship to produce services or goods that meet the community's needs". in this case, foreign workers are included in the skilled workforce. several professional organizations have signed a mutual recognition arrangement (mra).13 they will provide services to consumer countries in various priority areas in mra by agreed standards. workers have the right to receive recognition for their work abilities after participating in vocational training or on-the-job training carried out by training institutions such as government and private vocational training institutions. recognition of workability is carried out through workability certification. experienced 12 zulkifli anshori and i made suparta, “pengaruh pertumbuhan ekonomi, jumlah angkatan kerja, dan inflasi terhadap tingkat pengangguran di provinsi jawa timur (2007-2016),” jurnal ekonomi & bisnis 3, no. 2 (2018): 679, https://doi.org/10.1234/jeb17.v3i02.2129. 13 desi adhariani, sylvia veronica siregar, and rini yulius, “borderless with unequal opportunity? experts’ perspectives on the asean economic community and impact on indonesian accountant profession,” the qualitative report 24, no. 5 (2019): 1148, https://doi.org/10.46743/2160-3715/2019.3940. review of indonesia’s employment arrangements… ayu permatasari, chatrina febriani p., medika era w. 68 workers can also take a certificate of work competence. an independent national professional certification body has been established to certify work skills. 2. optimizing the indonesian employment arrangements in asean economic community (aec) era the establishment of the asean single market opens the greatest opportunity for indonesia, as long as it can prepare as much as possible for all existing potentials. these potentials are large areas, population, and human resources that are very abundant compared to regions in other countries. indonesia is a country that has abundant natural resources. indonesia must prepare itself as much as possible and improve its quality of employment to be utilized domestically and in asean countries. optimizing employment arrangements in indonesia in dealing with aec, namely by implementing policies that are supported in improving the quality of the workforce, must be carried out continuously with the government and the private sector. there are government policies that require the government to prepare and produce quality/skilled workers and the development of human resources, such as the "labour law," which requires providing vocational training for workers to improve their skills and qualifications to achieve prosperity in life. one of the crucial forms of optimizing job training is that a person cannot do certain jobs according to the needs of the work specified to increase their productivity.14 the manpower law is also linear with government regulation no. 23 of 2004 concerning national agency of profession certification or badan national sertifikasi profesi (bnsp), which requires the establishment of a bnsp. bnsp is independent and responsible for the certification of the workability of the president's executives. according to article 4 of government regulation no. 23 of 2004, to carry out the task of certifying work skills, the national professional certification body can grant permits to profession certification agency or lembaga sertifikasi profesi (lsp) that have met their requirements to obtain competency certification. competency certification provides certification carried out objectively and systematically through competency tests involving national and international work skills standards. the purpose of awarding certificates is to help professionals ensure and maintain competent workforce capabilities and help customers use competent personnel in the industry.15 the head national development planning agency or badan perencanaan pembangunan nasional (bappenas) of the ministry of national development planning explained that the implementation of various policies must be optimized, such as providing job training. only 5% of employees in indonesia have received job training. this will also affect the quality and skills of the country's human resources. in addition, the "labour law" also establishes a national professional certification body. the national professional certification body can permit the profession certification agency or lembaga sertifikasi profesi (lsp) to obtain competency certification in various government and private fields and must pay serious attention to this. this is a shared responsibility between the government and the private sector. in solving problems such as lack of budget, lack of awareness related to job skills training, and others, the government or the private sector has an important role that is so 14 ahmad setiadi, “strategi peningkatan keunggulan kompetitif sdm bidang tik di era mea,” cakrawala: jurnal humaniora 16, no. 1 (2016), https://doi.org/10.31294/jc.v16i1.1274. 15 muhammad findi alexandi, “penyerapan tenaga kerja pada sektor pertanian dan sektor jasa pascakebijakan upah minimum di provinsi banten (periode tahun 2001–2011),” journal of management & agribusiness (jma) 10, no. 2 (2013): 71–80, https://doi.org/10.17358/jma.10.2.71-80. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 69 needed. these problems are a shared responsibility between the government and the private sector so that problems can be resolved, especially job skills training.16 bnsp and lsp can help service users to ensure that they use a competent and ready workforce in indonesia that is competitive in the global job market. given the implementation of the free movement of employment will not belong. therefore, various policies that support the improvement of the quality of human resources in the human resources department require optimization in their implementation.17 aec should be an excellent opportunity for indonesian workers to find work because the presence of the aec will open up other countries in southeast asia to accept workers from indonesia. for entrepreneurs, aec can be a way to recruit quality workers to increase their company's value further. of course, it is hoped that the quality of the output will increase. however, it should be underlined that the aec can pose risks that impact employment in indonesia. employment competition is something to keep an eye on. employers want professional people who are experts in their fields. unfortunately, indonesia is still inferior to workers from malaysia, singapore, and thailand in terms of education and productivity. education is regarded as critical and strategic for human resource development.18 the quality that has not been able to compete with workers from other countries can cause problems. it should be noted that most indonesian workers are still low-educated. the lack of education access and the increasing cost every year is the root of the problem that needs to be solved. c. conclusion aecs employment arrangements in indonesia integrate the asean regional economy and one of the asean community pillars, which aims to achieve this goal by 2015. one of the consequences of implementing the 2015 asean economic community is free movement. skilled workers are defined in the asean economic community blueprint. government policies already exist, which require human resources to prepare and produce a skilled and high-quality workforce in response to the 2015 aec. for example, the "manpower law" stipulates that workers must be provided with vocational training to improve their skills and qualifications. bnsp and lsp can help service users to ensure that they use a competent and ready workforce in indonesia that is competitive in the global job market. therefore, various policies that support the improvement of the quality of human resources in the human resources department require optimization in their implementation. given the implementation of the free movement of employment will not belong. aec should be an excellent opportunity for indonesian workers to find work because the presence of the aec will open up other countries in southeast asia to accept workers from indonesia. for entrepreneurs, aec can be a way to recruit quality workers to increase their company's value further. it is hoped that the quality of the output will increase. references adhariani, desi, sylvia veronica siregar, and rini yulius. “borderless with unequal opportunity? experts’ perspectives on the asean economic community and impact on indonesian accountant profession.” the qualitative report 24, no. 5 (2019): 1148. 16 nur aksin, “upah dan tenaga kerja (hukum ketenagakerjaan dalam islam),” jurnal meta-yuridis 1, no. 2 (2018), https://doi.org/10.26877/m-y.v1i2.2916. 17 hilman nur, “peluang dan ancaman masyarakat ekonomi asean (mea) bagi perkembangan hak kekayaan intelektual indonesia,” jurnal hukum mimbar justitia (jhmj) 3, no. 2 (2017), https://doi.org/10.35194/jhmj.v3i2.217. 18 imron arifin and agustinus hermino, “the importance of multicultural education in schools in the era of asean economic community,” asian social science 13, no. 4 (2017): 79, https://doi.org/10.5539/ass.v13n4p78. review of indonesia’s employment arrangements… ayu permatasari, chatrina febriani p., medika era w. 70 https://doi.org/10.46743/2160-3715/2019.3940. aksin, nur. “upah dan tenaga kerja (hukum ketenagakerjaan dalam islam).” jurnal metayuridis 1, no. 2 (2018). https://doi.org/10.26877/m-y.v1i2.2916. alexandi, muhammad findi. “penyerapan tenaga kerja pada sektor pertanian dan sektor jasa pascakebijakan upah minimum di provinsi banten (periode tahun 2001–2011).” journal of management & agribusiness (jma) 10, no. 2 (2013): 71–80. https://doi.org/10.17358/jma.10.2.71-80. anshori, zulkifli, and i made suparta. “pengaruh pertumbuhan ekonomi, jumlah angkatan kerja, dan inflasi terhadap tingkat pengangguran di provinsi jawa timur (20072016).” jurnal ekonomi & bisnis 3, no. 2 (2018): 679. https://doi.org/10.1234/jeb17.v3i02.2129. arifin, imron, and agustinus hermino. “the importance of multicultural education in schools in the era of asean economic community.” asian social science 13, no. 4 (2017): 79. https://doi.org/10.5539/ass.v13n4p78. astuti, setyani agung dwi. “dampak covid-19 terhadap ketenagakerjaan dan umkm di mojokerto.” jurnal inovasi penelitian 1, no. 9 (2021). https://doi.org/10.47492/jip.v1i9.236. destiningsih, rian. “pengaruh sektor industri terhadap peningkatan tenaga kerja di kabupaten magelang.” jurnal humaniora : jurnal ilmu sosial, ekonomi dan hukum 4, no. 2 (2020). https://doi.org/10.30601/humaniora.v4i2.1070. haryati, vivi regina. “implementasi masyarakat ekonomi asean terhadap elemen tenaga kerja terdidik di indonesia.” jurnal ekonomi pembangunan 17, no. 2 (2019). https://doi.org/10.29259/jep.v17i2.9508. husnayetti. “masyarakat ekonomi asean 2015 dan daya saing sumber daya manusia.” jurnal liquidity 3, no. 2 (2014). https://doi.org/10.32546/lq.v3i2.94. ismail, najmi. “hukum dan fenomena ketenagakerjaan.” focus: jurnal pekerjaan sosial 1, no. 3 (2018). https://doi.org/10.24198/focus.v1i3.20494. maulidiah, sri. “administrasi ketenagakerjaan di kota pekanbaru.” jurnal publika 1, no. 2 (2015). https://doi.org/10.25299/jiap.2015.vol1(2).1562. nikomborirak, deunden. “the asean economic community (aec): myths and realities.” asian economic papers 14, no. 2 (2015): 73. https://doi.org/10.1162/asep_a_00348. nur, hilman. “peluang dan ancaman masyarakat ekonomi asean (mea) bagi perkembangan hak kekayaan intelektual indonesia.” jurnal hukum mimbar justitia (jhmj) 3, no. 2 (2017). https://doi.org/10.35194/jhmj.v3i2.217. putra, anditya. “implementasi kebijakan ketenagakerjaan di kabupaten sumedang.” prosiding penelitian dan pengabdian kepada masyarakat 2, no. 3 (2015). https://doi.org/10.24198/jppm.v2i3.13595. sahlan. “preparation of international business contracts in facing the asean economic community era.” hasanuddin law review 2, no. 3 (2016): 426. https://doi.org/10.20956/halrev.v2i3.702. setiadi, ahmad. “strategi peningkatan keunggulan kompetitif sdm bidang tik di era lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 71 mea.” cakrawala: jurnal humaniora 16, no. 1 (2016). https://doi.org/10.31294/jc.v16i1.1274. tobari, muhammad kristiawan, and nova asvio. “the strategy of headmaster on upgrading educational quality in asean economic community (aec) era.” international journal of scientific & technology research 7, no. 4 (2018): 72. yuli, yuliana. “regulasi pendidikan nasional sebagai upaya meningkatkan sumber daya manusia memasuki era masyarakat ekonomi asean (mea).” jurnal yuridis 3, no. 1 (2016). https://doi.org/10.35586/.v3i1.171. review of indonesia’s employment arrangements… ayu permatasari, chatrina febriani p., medika era w. 72 11 protection of children’s personal data in the digital world based on national and international legal framework bismo jiwo agung eko supriadi and partners law firm, indonesia, email: bismojiwoagung05@gmail.com submitted: january 14, 2019; reviewed: february 25, 2019; accepted: march 4, 2019 article info abstract keywords: protection, personal data, term, international, national. doi: 10.25041/lajil.v1i1.2020 the crime of children’s data in the digital world is one of the causes of the rampant crime of bullying, fraud, theft, sexual harassment, exploitation and abduction which leads to the trafficking of people who make children victims. the method used in this paper is a juridical-normative comparative legal research method. the result shows that the convention on the rights of child convention 1989 (corc) does not regulate the personal data in the digital world comprehensively. so far, countries in the world, including indonesia, have only relied on the international legal framework. it is recommended, including international guidelines issued by several international organizations such as the organization for economic co-operation and development (oecd), asia pacific economic cooperation (apec), and the international telecommunication union regarding the guidelines for parents and children in 2016. indonesia already has a set of legal rules that are used as a basis for protecting children’s rights in the digital world. based on these rules, the protection of children’s data in the digital world is included in the private and criminal domain. these legal frameworks show that the government is passive in protecting children’s data in the digital world because the responsibility of child safety and security when online is still focused on the parents or guardians of the child. a. introduction information technology is all things related to the process, use, as a tool, manipulation, and management of information. at the same time, communication technology is all things related to the use of tools to process and transfer data from one device to another.1 at present, the technology can be used by adults and children not only for means of entertainment or communication but also used as a forum for expressing opinions, inspiration and online learning media. in addition to offering many benefits, technology also harms children. children are a group that must be considered by the 1 bayu sujadmiko, pengantar hukum tekanologi informasi internasional (bandar lampung: zam-zam tower, 2017), 45. volume 1 issue 1, 2019: pp. 11-18. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 2656-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:bismojiwoagung05@gmail.com https://doi.org/10.25041/lajil.v1i1.2020 protection of children's personal data in the digital world based on national.... bismo jiwo agung 12 state and the surrounding community.2 based on law no. 35 of 2015 concerning child protection and the convention on rights of child 1989, is meant by children is every person under the age of 18. in the past ten years, crimes against children committed using the internet have increased, every one of these crimes can occur in homes, schools, orphanages, public facilities, roads, workplaces, even in prisons.3 based on reports from unicef in 2017, there were 5 (five) million profiles and children’s accounts stolen using internet-based theft. according to javelin strategy & research in 2017, more than one million children in the united states who were victims of identity theft caused losses of $ 2.6 billion (two billion six hundred million dollars).4 european countries also experienced losses due to personal data stolen or misused by other parties in 2017 which reached 1.37 billion data lost or stolen.5 the increase in the number of crimes against children is closely related to the high use of gadgets connected to the internet by children. table 1. use of gadgets by children source: ofcom children media use and attitudes report 2017 the data in table 1 shows that currently, children aged 5 (five) to 18 (eighteen) years are used to gadgets and the internet. therefore, parents and the government must be more careful in safeguarding the safety and security of children. currently, children use technology in the form of applications to connect, play, and as a learning tool. it also shows that children are more active using digital device lately. at present, the personal data of children in the digital world is very vulnerable to abuse. for some parties, children’s data is more valuable than adult data. child identity can be used by “anonymous”6 for various kinds of things. one of them is used to create an identity or fake credit card account.7 when there are parties who use fake credit card accounts in the name of children, automatically the child or parent or guardian will be forced to pay fake credit bills on behalf of the child even though the credit is used by someone else. as for other consequences, when adults grow up, children cannot use their identity to create a credit card account because the child’s data has been blocked or has a poor track record. the occurrence of fraud and extortion on behalf of the child occurred in 2018 in the united states, which caused a total loss of $ 540,000,000 (five hundred forty million dollars).8 the protection of personal data and children’s privacy actually has been affirmed at the 1989 convention on rights of the child which is a follow-up to the universal declaration of human rights which has proclaimed and agreed that everyone has the right to all rights and freedoms expressed 2 marojahan hutabarat, “analisis perbandingan putusan hakim atas tindak pidana persetubuhan dan tindak pidana percabulan terhadap anak,” cepalo 2, no. 2 (2019): 93–102, 94, doi: 10.25041/cepalo.v2no2.1766. 3 united nation children’s fund, child protection information sheet (new york: the child protection section programme division unicef, 2006), 5. 4 http://fortune.com/2018/04/24/stolen-identity-theft-children-kids/, accessed on june, 26 2018. 5 https://www.itgovernance.eu/blog/en/more-data-lost-or-stolen-in-2017-than-all-of-2016-but-europe-bucks-the-trend, accessed on 28 juli 2018 6 anonymous is someone who can not be identified because it uses a name that is not his real name. 7 hemu niggam. (2015). http://fortune.com/2015/11/30/vtech-hacking-children-data/, accessed on june, 26 2018. 8 http://fortune.com/2018/04/24/stolen-identity-theft-children-kids/, accessed on june 26, 2018. gaming youtube social media online 23% 3% age 12-15 age 5-7 age 8-11 81% 90% 71% 81% 77% 66% 74% 99% 94% 79% 120% 100% 80% 60% 40% 20% 0% http://fortune.com/2018/04/24/stolen-identityhttp://www.itgovernance.eu/blog/en/more-data-lost-or-stolen-in-2017-than-all-of-2016-buthttp://fortune.com/2015/11/30/vtech-hacking-children-data/ http://fortune.com/2018/04/24/stolen-identity-theftlampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 13 therein, without discrimination, based on race, skin colour, gender, language, religion, political views or other opinions, national and social origin, wealth, birth or different position. in addition to child conventions, international organizations have also made guidelines regarding the protection of children’s data in the digital world such as the organization for economic co-operation and development (oecd) council recommendation on the protection of children online 2012, apec privacy framework 2015, international telecommunication union guidelines for children on child online protection 2016 and the international telecommunication union guidelines for parents, guardians and educators on child online protection 2016. the indonesian government has enforced law number 23 of 2002 concerning child protection which has been updated with law number 35 of 2014 concerning amendment to law number 23 of 2002 concerning child protection as an effort to provide legal certainty and its commitment to safeguarding children’s rights as nation’s next generation. furthermore, the indonesian government has also ratified and enforced law number 11 of 2008 concerning information and electronic transaction and law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning information and electronic transaction as an effort to protect the citizen from all crimes electronic. the ministry of communication and information has also issued ministerial regulation number 20 of 2016 concerning the protection of personal data in electronic systems as a preventive measure for the occurrence of personal data crimes in indonesia. furthermore, as a follow up to law number 23 of 2002 concerning child protection which has been updated with law number 35 of 2014 concerning amendment to law number 23 of 2002 concerning child protection, the government has ratified government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of crime as a repressive effort and also as a rehabilitation effort for children who have been victims of crimes of sexual or economic exploitation, pornography, kidnapping, sales, and/or trafficking, physical violence and sexual crimes. the use of technology that is universal and borderless can make the crime of child personal data in the digital world into a crime across national borders where perpetrators and victims of crime are under the jurisdiction of different countries. moreover, currently, the problem of misuse of personal data and violations of children’s privacy in the digital world has become a global problem experienced by countries in the world, including indonesia. therefore harmonization between international and national legal framework is needed to strengthen the protection of children personal data in the digital world to prevent and also react to children’s personal data crimes in indonesia. considering the impact and the nature of personal data crime which stated above, the authors are interested in discussing: how is the protection of children’s data in the digital world based on international law? and how is the protection of children’s personal data in the digital world based on national law? this type of research used in writing this research is juridicalnormative-comparative, which is legal research literature that examines a problem based on legal norms contained in international regulations and legislation and comparing between two groups or more than a certain variable to produce a conclusion. the method in data collection used library study technique method, namely by studying the provisions of the legislation, international guidelines, books, documentation, journals, and accessing data on the internet related to issues within the scope of international law and the scope of national law. data analysis was carried out by outlining and giving the meaning of each data obtained into sentences that are detailed, orderly, effective, logical and not overlapping to facilitate the author in interpreting and analyzing the data which then concludes response to the problems contained in this paper. b. discussion 1. child protection term relating to children’s personal data in the digital world according to international and national legal framework. the protection of personal data and privacy of children according to international law has been limited to the convention on rights of the child 1989, which is a follow-up to the universal declaration of human rights which has proclaimed and agreed that everyone has the right to all the rights and freedoms stated therein. without discrimination, based on race, colour, gender, language, religion, political views or other opinions, national and social origin, wealth, birth or other position. protection of children's personal data in the digital world based on national.... bismo jiwo agung 14 in addition to child conventions, international organizations have also made guidelines regarding the protection of children’s data in the digital world such as the organization for economic co-operation and development (oecd) council recommendation on protection of children online 2012, apec privacy framework 2015 international telecommunication union guidelines for children on child online protection 2016 and the international telecommunication union guidelines for parents, guardians and educators on child online protection 2016. the reason the author chose and discussed the international guidelines convention in this paper was due to the link between indonesia and these international legal frameworks. the connection began with the enactment of the convention on rights of the child in 1989 through presidential decree no. 36 of 1990 concerning the enactment of the convention on rights of the child 1989. furthermore, indonesia has also become a member of the oecd based on presidential decree number 1 of 2012 concerning determination of indonesian membership in the development center organization for economic co-operation and development. in addition, indonesia has been a member of apec since 1989 but has not been recorded in the laws and regulations of setkab. even though it is not listed in the statutory record, indonesia remains a member state in apec. furthermore, indonesia has also ratified law number 10 of 1969 concerning the convention on international telecommunication union in montreux 1965 as the legal basis for indonesian membership in the itu. as a consequence of the enactment of the regulation, indonesia must consider every recommendation given by itu to build a good telecommunications system. a. protection of children’s personal data in the digital world according to international legal frameworks to make it easier for readers to know the focus of the discussion of each international guideline, the authors will describe the differences in the scope and substance of each international guidelines and international conventions using matrix one on page 7. matrix 1. explains the focus and substance of each international term has a different focus and substance but has the same goal of creating a child-friendly system in the form of ensuring the security and integrity of children’s personal data in the digital world. these legal frameworks do not discuss technically and deeply about the implementation of procedures that must be taken by each country. according to the author, the reason is the difference in culture and interests of each country. so that international legal framework often only regulate the outline. as for the technical implementation, it is returned to each country. international telecommunication union guidelines for children on child online protection 2016. international telecommunication union guidelines for parents, guardians, and educators on child online protection 2016. apec privacy framework 2015 oecd the protection of children online 2012 convention on rights of the child 1989 international provisions guide children in protecting themselves from the negative effects of the internet such as cyberbullying, identity theft and online harassment while browsing the internet. this guideline was formed to provide preventive solutions in the form of educating educators, parents, and guardians in maintaining children’s privacy in the digital world. the purpose of this guideline is to protect privacy in business activities so that it is possible to send personal data that will benefit consumers, businesses and governments between countries. providing recommendations to the government and stakeholders in making rules for the protection of children online by applying the principles of empowerment, proportionality, and flexibility by adjusting their national legal systems with technological  protect the honour and inherent rights of children in general without discriminatio n  recommend to member countries to create a child protection system in each country aim lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 15 specifically discussed topics are pointed out for children always to be careful and behave well when online. the scope of this rule educates educators, parents, and guardians regarding the protection of children’s data in the digital world. the scope of this framework applies to people as humans or organizations in public and private fields who control the collection, storage, processing, use, delivery or dissemination of personal information  discuss the risks and urgency of establishing a child protection system when online  discuss intergovernme ntal strategies in the field of child protection when online  discuss protection of every right held by children from birth to adulthood; scope  this guideline discusses strategies specifically given to children to be more easily understood and implemented by children.  this guideline discusses child protection strategies aimed at parents or guardians and teachers.  this guideline discusses the principles of protecting children’s data in the digital world that must be the basis or consideration of the state in establishing and implementing its legal system in the field of child protection when online.  these guidelines discuss more the strategies that must be taken by the government in creating a child protection system in the digital world between countries. ;  this convention does not mention the protection of personal data. however, it still guarantees its protection as part of the privacy of children. analysis b. protection of children’s personal data in the digital world based on national law the protection of children’s data in the digital world in indonesia is realized through the enactment of law number 23 of 2002 concerning child protection which is updated by law no. 35 of 2014 concerning amendment to law number 23 of 2002 concerning child protection. in addition to protecting children’s rights in cyberspace, the government issued law number 11 of 2008 concerning information and technology which was updated by law number 19 of 2016 concerning amendment to law no. 11 of 2008 concerning information and technology. furthermore, to protect personal data related to child privacy, the government has issued regulation of the minister of communication and information number 20 of 2016. as an implementing rule of law number 23 of 2002 concerning child protection which is updated by law no. 35 of 2014 concerning amendment to law no. 23 of 2002 concerning child protection, the government has enforced government regulation number 43 of 2017 concerning the implementation of restitution for children becoming victims of crime as one of the rehabilitation efforts aimed at children. in order to make it easier for readers to identify and understand the substance and scope of each rule, the author will explain the differences in the scope and substance of each national rule in the following matrix 2. based on matrix 2. it is clear even though the two laws have different scope and substance, but both have connections in maintaining children’s data in the digital world. law no. 23 of 2002 concerning the protection of children that has been refurbished by law number 35 of 2014 concerning child protection does not mention the protection of children’s data. therefore, in protecting children’s data in the digital world, this law must be accompanied by law number 11 of 2008 concerning information and electronic transaction that have been updated by law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning information and electronic transaction whose scope and substance governs the protection of rights in electronic systems. furthermore, the regulation of personal data is further regulated in the minister of communication and information regulation number 20 of 2016 concerning the protection of personal data in electronic systems which adopts the protection principles contained in the oecd guidelines, apec privacy framework and itu guidelines. however, this regulation still does not categorize crimes that include data crimes. for children who are victims of personal data crimes that protection of children's personal data in the digital world based on national.... bismo jiwo agung 16 end up being victims of crime: 1) sexual or economic exploitation; 2) pornography; 3) abduction, sale, and/or trade; 4) physical violence. can submit a request for restitution as regulated in government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of crime as an effort to return the rights of children who have become victims of crime, because restitution is not automatically given to children who are victims of the intended crime in government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of crime. 2. comparison between international and national legal framework concerning the protection of children’s personal data in the digital world child protection is an act of prevention and prevention of acts of violence, exploitation, and abuse of children.9 the purpose of child protection is to ensure the fulfilment of children’s rights, to be able to live, grow, develop and participate optimally by human nature and dignity, and get protection from violence and discrimination for the realization of quality, noble and prosperous indonesian children.10 this goal cannot be realized without cooperation between parents or guardians, the government and the organizers of electronic systems in maintaining the safety of children when online. one of the preventive measures that can be taken by the government is by making a set of rules relating to child protection by combining and harmonizing national legal framework with the international guidelines issued by international organizations. the need to combine national and international legal framework is due to the current national legal framework that is still weak in terms of regulating the protection of children’s personal data in the digital world when compared to the international guidelines previously described. if we compare the existing international guidelines in the protection of children’s personal data in the digital world, the protection of personal data of children referring to international guidelines is mostly in the hands of the government. the government should be active in protecting children’s personal data in the digital world by collaborating between countries and managing electronic systems. the government is also required to monitor and ensure that providers of electronic systems to carry out their activities in accordance with applicable regulations such as: a. protection of children aged less than 18 years; b. protection of children’s personal data in the digital world; c. data category included as child’s personal data; d. types of child personal data crimes in the digital world; e. efforts to rehabilitate and fulfil the rights of child victims of child personal data crime in the digital world; f. prohibition and/or sanction of crimes against children’s personal data in the digital world. in indonesia, based on article 26 of law number 11 of 2008 concerning information and electronic transaction that has been updated by law number 19 of 2016 concerning amendments to law number 11 of 2008, the state is passive because it cannot immediately conduct an investigation or investigation of the case. after all, the state does not have an obligation to do so if there are no reports or complaints from people who feel disadvantaged.11 other evidence that shows that the state is passive in protecting child victims of personal data crime which leads to criminal acts of exploitation, pornography, physical violence, and psychology lies in the efforts of restitution given to children who are victims. according to article 4 of government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of criminal acts stating that the victim submits restitution efforts to investigators and public prosecutors before the court issues the decision. furthermore, the request for restitution can also be rejected and returned to the applicant if 9 united nation children’s fund, op.cit., 1. 10 prints, darwan, hukum anak indonesia (bandung: citra aditya bakti, 2003), 146. 11 andi sofyan dan nur azisa, hukum pidana (makassar: pustaka pena press, 2016), 108. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 17 the investigator or prosecutor feels that the file still needs to be completed. this indicates that restitution efforts can occur only if the victim submits a request for restitution to investigators and prosecutors. because in the child protection law and ite, sanctions given to perpetrators of crime are criminal sanctions and fines. unlike restitution, the amount of money paid to fulfil a penalty will go to the state treasury rather than be paid to the victim.12 based on these provisions, then if there is no application for restitution submitted by the victim, the state may provide or not provide restitution to the victim. furthermore, in law number 23 of 2002 concerning child protection that has been updated by law number 35 of 2014 concerning child protection and law number 11 of 2008 concerning information and electronic transactions that have been updated by law number 19 of 2016, does not specify data categories that are included as children’s personal data that must be protected. although the minister of communication and information technology regulation number 20 of 2016 concerning the protection of personal data in electronic systems has determined the definition of personal data, this rule only determines the definition of personal data broadly and does not specify the type of personal data that may and may not be collected, stored and processed by other parties. c. conclusion based on the results of the research, the author has described in the previous chapter. the conclusions of this paper are the protection of children’s data based on the international legal framework is constituted in convention on the rights of the child 1989. it mandates participating countries to play an active role in respecting and fulfilling children’s rights by creating a child protection system that is adjusted to the state of culture and politics in each country. oecd council recommendation on the protection of children online 2012 recommends that all stakeholders have an awareness to protect children when online. coordination between stakeholders is also needed in accordance with their respective roles. the government must also carry out international cooperation in a provision, and implementation is very important in the success of protecting children when online and minimizing the risks that exist. the apec privacy framework also recommends cooperation between countries in terms of protecting children’s personal data from the start of sending to managing the data. when protection in terms of technical delivery and management has been carried out, parents, guardians, teaching staff and children must understand the roles and functions of the technology they use every day. itu has also provided guidance to children, parents, guardians and teaching staff related to the protection of children’s personal data in the digital world through the itu guidelines for parents, guardians, and educators on child online and the itu guidelines for children on child online. indonesia has a set of legal rules which are used as a basis in protecting children’s rights in the digital world, including law number 23 of 2002 concerning child protection which has been renewed by law number 35 of 2014 concerning amendment to law no. 23 of 2002 concerning child protection, law number 11 of 2008 concerning information and electronic transactions that have been updated with law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning electronic information and transactions, minister of communication and information regulation number 20 of 2016 concerning the protection of personal data, and government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of crime. based on these rules, the protection of children’s personal data in the digital world is included in the private and criminal domain. furthermore, children who have become victims of the crime of child personal data in the digital world that lead to exploitation, and crimes intended in government regulation number 43 of 2017 concerning the implementation of restitution for children who become victims of crime, are not automatically given restitution in an effort rehabilitation to children. these provisions indicate that the government is passive in protecting children’s personal data in the digital world because the responsibility of child safety and security when online is still focused on the parents or guardians of the child. 12 fitriani mahmud mulyadi, m ekaputra, and chairul bariah, “tindak pidana penelantaran rumah tangga menurut undang-undang nomor 23 tahun 2004 tentang penghapusan kekerasan dalam rumah tangga (studi putusan mahkamah agung nomor 467k/pid.sus/2013),” usu law journal 3, no. 28, (2015): 28-39, 38. protection of children's personal data in the digital world based on national.... bismo jiwo agung 18 references a. journal mulyadi, fitriani mahmud., ekaputra, m., bariah, chairul. “tindak pidana penelantaran rumah tangga menurut undang-undang nomor 23 tahun 2004 tentang penghapusan kekerasan dalam rumah tangga (studi putusan mahkamah agung nomor 467k/pid.sus/2013),” usu law journal 3, no. 28, 2015: 28-39. hutabarat, marojahan “analisis perbandingan putusan hakim atas tindak pidana persetubuhan dan tindak pidana percabulan terhadap anak,” cepalo 2, no. 2, 2019: 93–102, doi: 10.25041/cepalo.v2no2.1766. b. book prints, darwan. hukum anak indonesia. bandung: citra aditya bakti, 2003. sofyan, andi et.al. hukum pidana. makassar: pustaka pena press, 2016. sujadmiko, bayu. pengantar hukum teknologi informasi internasional. bandar lampung: zamzam tower, 2017. united nation children’s fund. child protection information sheet. new york: the child protection section programme division unicef, 2006. c. regulation apec privacy framework 2015. government regulation number 43 year 2017 concerning implementation of restitution for children who become victims of criminal acts. law number 11 year 2008 concerning updated information and electronic transactions law number 19 year 2016 concerning amendments to the law law number 23 year 2002 concerning child protection which has been updated with law number 35 year 2014 concerning amendments to law number 23 year 2002 concerning child protection oecd the protection of children online 2012. convention on rights of the child 1989. regulation of the minister of communication and information number 20 year 2016 concerning protection of personal data in electronic systems. international telecommunication union guidelines for children on child online protection 2016. international telecommunication union guidelines for parents, guardians and educators on child online protection 2016. d. internet http://fortune.com/2015/11/30/vtech-hacking-children-data/, accessed on june 26, 2018. http://fortune.com/2018/04/24/stolen-identity-theft-children-kids/, accessed on june 26, 2018. https://www.itgovernance.eu/blog/en/more-data-lost-or-stolen-in-2017-than-all-of-2016-buteurope-bucks-the-trend, accessed on june 26, 2018. http://fortune.com/2015/11/30/vtech-hacking-children-data/ http://fortune.com/2018/04/24/stolen-identity-theft-children-kids/ http://www.itgovernance.eu/blog/en/more-data-lost-or-stolen-in111 legal protection of migrant workers against threats of abuse discrimination in a diplomatic relationship perspective between countries yapiter marpi faculty of law, universitas jakarta, indonesia, e-mail: yapitermarpi@gmail.com submitted: june 29, 2021; reviewed: july 7, 2021; accepted: september 2, 2021 article info abstract keywords: protection of laws, labor, migrants, diplomacy. doi: 10.25041/lajil.v3i2.2366 manpower is the driving force of an activity that can determine the implementation of manpower through the available manpower, which is an integral part of national development based on pancasila and the 1945 constitution of the republic of indonesia. problems that occur to indonesian migrant workers abroad occur cases, abuse and discrimination occur, such as cases of sexual harassment, cases involving convictions of migrant workers, cases of unpaid wages, to cases of unilateral termination of employment. this research uses normative juridical research methods and is legally supported by socio descriptive analysis employing primary, secondary, and tertiary data. the purpose of this research is that the placement of indonesian workers abroad is one of the state's efforts to realize the same rights and obligations for workers to improve their standard of living. the study results show that the protection of migrant workers needs to be affirmed with certainty against the regulation of law number 18 of 2017. the aim is to guarantee indonesian migrant workers and their families in realizing guaranteed fulfillment of their rights in all activities before working, during work, and after working in legal, economic aspects, and social. the role of state diplomacy is needed in protecting and fulfilling the rights of migrant workers because this condition involves relations between countries, as people who have no choice of provider for life, workers. therefore the role of the state must be very spearheading in providing legal protection to migrant workers because their status is minimal. the research analysis results to realize the implementation of international and national legal instruments from indonesia need to be optimized through diplomacy from those with interest so that protection is said to be effective and optimal. volume 3 issue 2, july-december 2021: pp. 111-120. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil legal protection of migrant workers against threats of abuse discrimination… yapiter marpi 112 a. introduction through the government of president ir. joko widodo, in 2020, the government is preparing a draft job creation law using the omnibus law method. the placement of indonesian workers abroad is one of the government's efforts to realize the same rights and obligations for workers to improve their standard of living. with this migration, indonesian workers are also able to contribute to the indonesian economy. as mandated by article 27 paragraph (2) of the 1945 constitution of the republic of indonesia, it is stated that "every citizen has the right to work and a decent living for humanity". based on the article, the government is obliged to provide employment opportunities for its people to live appropriately following the limits of humanity. humans are living beings who were born to develop physically and psychologically. therefore, the law, which has a regulatory nature, must be developed according to people's lifestyles. it should be noted that the number of migrant workers is increasing along with the number of workers. three key factors influence the increase in the phenomenon of labor migration. the first is the pull factor caused by changes in demographics and labor needs by industrialized countries. the second is the push factor, related to population issues, unemployment, and crisis pressures. unemployment in indonesia continues to increase and has reached seven million people, which is one of the factors that pushed the omnibus law on job creation to be ratified. the job creation law number 11 of 2020 is also to improve the quality of indonesian workers. as people who do not choose livelihood, migrant workers are forced to work for other people.1 the position of the employer determines the rules and employment agreements. therefore, the role of the government is essential to provide legal protection to migrant workers because their status is minimal. from the existing statement, the state should protect its citizens, including indonesian migrant workers who live and work outside the territory of the republic of indonesia. the workers may obtain protection from the state through its organs such as the embassy of the republic of indonesia, the consulate general of the republic of indonesia, an institution diplomatic and consular representatives owned by indonesia commitments to protect indonesian migrant workers carried out optimally. such protection focuses on the balance of indonesian migrant workers' rights and obligations. protection of migrant workers must also not distinguish the status and background of migrant workers.2 when the global covid-19 crisis halted international labor migration,3 there was a decrease in the number of workers in the short, medium, and long term, including a crisis against women workers. women who migrate may face double discrimination in the workplace. discrimination involves navigating their roles as immigrants while also dealing with gender inequality.4 recently, the international labor organization (ilo) released a study on female workers in the garment industry sector in the asia pacific region. with the theme “the gender impact of covid-19 in the garment sector”. ilo data reports that the corona pandemic has increasingly led to discriminatory practices and harassment against women, including injustice in the issue of wage rights in garment industry companies. the 1 h.n. rosalina and l. t. setyawanta, “perlindungan hukum terhadap pekerja migran sektor informal dalam perspektif teori bekerjanya hukum di masyarakat,” jurnal pembangunan hukum indonesia 2, no. 2 (2020): 174–87, https://doi.org/10.14710/jphi.v2i2.174-187. 2 ida hanifah, “peluang tenaga kerja asing untuk bekerja di indonesia berdasarkan rancangan undangundang cipta kerja,” de lega lata: jurnal ilmu hukumm 6, no. 1 (2020): 158–73, https://doi.org/10.30596/delegalata.v6i1.5536. 3 andreas neef, “legal and social protection for migrant farm workers: lessons from covid‑19,” agriculture and human values 37 (2020): 641, https://doi.org/10.1007/s10460-020-10086-w. 4 sally c. moyce and marc schenker, “migrant workers and their occupational health and safety,” annual review of public health 39, no. 1 (2017): 13–17, https://doi.org/10.1146/annurev-publhealth-040617-013714. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 113 ilo explained that the garment industry is the company that absorbs the most labor from women. therefore, the international labor organization (ilo) made a series of recommendations to solve this problem, including a more equitable gender equality agenda or as much as 80 percent. however, when the world experienced the covid-19 pandemic, these female workers experienced new problems. the problem is not far from the impact of the covid-19 pandemic. because of the challenges they face at work and expectations regarding women's obligations at home, the condition is that imports from major buying countries from garment exporting countries in asia are experiencing a decline of up to 70 percent in the first half of 2020. thus, many garment companies have gone out of business, and inevitably many female workers have become victims of termination of employment (phk).5 the protection of indonesian migrant workers abroad as indonesian citizens is also based on law number 37 of 1999 concerning foreign relations. article 19 regulates "providing protection and legal assistance for indonesian citizens and legal entities abroad, under national laws and regulations as well as international law and practice.”6 a common thread has been drawn from the description above on the lack of harmony between international legal instruments and national law for migrant workers’ protection. however, there are still gaps in the field regarding implementing legal instruments for labor absorption barriers in indonesia, namely the lack of an educated workforce, poor infrastructure, and an empirically convoluted policy framework. the facts on the ground are very different from the original purpose of making legal instruments related to the protection of migrant workers. the implementation of indonesia's international and national legal instruments needs to be optimized through diplomacy from interested parties so that protection is effective and optimal. b. discussion 1. optimizing the protection of migrant workers according to the international labour organization (ilo), there is 244 million migrants worldwide.7 rapid economic growth in some asian countries, combined with high labor demand and wages, as well as a lack of employment with the low wages in the country of origin, have been the two pull and push factors in indonesian labor migration.8 indonesia is a country that sends the largest workforce of its citizens to work abroad either at the request of the country concerned or the active initiative of implementing placements working abroad. following the role and position of the workforce, it is necessary to develop manpower to improve the quality of the workforce and their participation in development. it is also necessary to have reliable and professional quality human resources. moreover, it increases workers' and their families' protection following human dignity. it is in line with these objectives in the era of globalization and increasing development in all sectors of life.9 5 ksbsi, “dilema diskriminasi buruh perempuan industri garmen ditengah pandemi,” www.ksbsi.org, 2020, https://www.ksbsi.org/home/read/1327/dilema-diskriminasi-buruh-perempuan-industri-garmen-ditengahpandemi. 6 yapiter marpi, “the criticism of social justice in economic gap,” insignia: journal of international relations 2 (2021): 23–31. 7 david koh, “migrant workers and covid-19,” occupational & environmental medicine 77, no. 9 (2020): 634, https://doi.org/10.1136/oemed-2020-106626. 8 henny nuraeny, “trafficking of migrant workers in indonesia: a legal enforcement and economic perspective of prevention and protection efforts,” european research studies journal 20, no. 4b (2017): 17, https://doi.org/10.35808/ersj/871. 9 maulida indriani, “peran tenaga kerja indonesia dalam pembangunan ekonomi nasional,” gema keadilan 3, no. 1 (2016): 74–85, https://doi.org/10.3592/2. legal protection of migrant workers against threats of abuse discrimination… yapiter marpi 114 the covid-19 pandemic has caused multidimensional shocks, such as education, health, economy, and labor. the law should exist to protect workers amid the problems caused by the current pandemic. as regulated in article 27 paragraph (2) of the 1945 constitution of the republic of indonesia, that the existence of legal protection for workers aims to be able to guarantee equality in obtaining opportunities and freedom from discriminatory treatment, including freedom from different treatment based on the religion they adhere to is a right a person's fundamental rights. the government should pay attention by negating regulations regarding the use of foreign workers in indonesia. these regulations are not regulated separately but are part of the compilation of law number 13 of 2003 concerning manpower, contained in chapter viii articles 42 to 49. furthermore, it regulates that employing foreign workers must have written permission, plans for the use of foreign workers, types of positions and competency standards for foreign workers, the appointment of indonesian citizens as companions for foreign workers, education and training for indonesian workers, as well as the obligation of employers to repatriate workers foreigner after the employment relationship ends. this labor regulation is strengthened by presidential regulation no. 20 of 2018 concerning the use of foreign workers. the view of international law, for example in article 2 of the universal declaration of human rights (udhr) which states: "everyone is entitled to all the rights and freedoms outlined in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status". this means that everyone has the same right to be free from discriminatory treatment, including based on one's religion.10 the regulation states that workers who come to indonesia occupy certain positions, thus do not allow any unskilled workers because the law clearly states that there must be a transfer of technology and expertise from foreign workers to indonesian workers. however, there are still violations of licensing regulations and the use of foreign workers. regarding the protection of migrant workers, the united nations (un) has issued a convention, namely the international convention on the protection of the right of all migrant workers and members of their families 1990 concerning the international convention on the protection of all immigrant workers and members of their families. in the convention, it is seen that one of the international legal instruments protects not only migrant workers but also their family members. the opinion of cst kansil said that legal protection is a legal effort given by law enforcement officers to legal subjects to create a safe situation from all threats and obstacles given by anyone. while according to satjipto rahardjo, the purpose of legal protection is to protect human rights.11 the united nations adopted the migrant workers convention in december 1990 (un convention on the protection of rights of migrant workers and their family members) on december 18, 1990. the convention entered into force on july 1, 2003 after ratification by 20 countries reached in march 2003. the legitimacy of the provisions of article 1 number 14 of law number 13 of 2003 concerning manpower defines a work agreement, namely an agreement between a worker/laborer and an entrepreneur or employer that contains the terms of work, rights, and obligations of the parties. the convention to ratify the migrant workers convention with law number 6 of 2012 in principle protects all migrant workers regardless of how they enter a country. this convention regulates the rights that apply to all migrant workers regardless of 10 abdulkadir muhammad, hukum dan penelitian hukum (bandung: pt.citra aditya bakti, 2014). 11 ali ismail shaleh and raihana nasution, “perlindungan hukum tenaga kerja migran indonesia di arab saudi sebagai negara non internasional convention on the protection of the rights of all migrant wokers and members of their families,” jurnal yustisiabel 4, no. 1 (2020): 27–36, https://doi.org/10.32529/yustisiabel.v4i1.481. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 115 their legal status and regulates the rights that apply to migrant workers and fundamental freedoms for migrant workers. this convention provides a complete standard of human rights that all countries must guarantee to all persons who qualify as migrant workers. this convention is an international convention that comprehensively regulates the relationship between the migration of people and human rights. forty-one countries have ratified this convention, most of which are sending countries, such as mali, the philippines, sri lanka, and indonesia. 2. migrant guarantee of elimination of migrant discrimination international migrants include a diverse group of people, along with workers, refugees, students, undocumented immigrants, and others.12 article 2 paragraph (1) of the migrant workers convention defines a “migrant worker” as “any person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a national”. this means that international law protects migrant workers, namely someone who is about to, is in the middle, or has been doing paid work in a country where the person is not a local citizen. for refugees and stateless persons, their rights will only be recognized in the convention if this is also regulated in the national provisions of the country concerned. referring to these provisions, specific religious requirements in the labor recruitment process violate workers’ rights to have a religion and be free from discrimination. this convention seeks to guarantee the human rights of migrant workers, broadly including civil and political, economic, and socio-cultural rights. one group called illegal immigrants are usually asylum seekers who refuse a permanent residence permit, or people (overstayer), namely people who live in a country but whose residence permit/visa has expired and is categorized as illegal immigrants.13 migrant labor includes cleaning the house, cooking, washing and ironing clothes, caring for family members; children, elderly or sick; gardening, housekeeping, driving for the family, and even caring for household pets. however, the level of willingness of countries to ratify this convention is relatively low. in addition, considering the structure of the international convention, whose validity depends on the existence of ratification, the protection of migrant workers depends on the presence or absence of cooperation between governments, especially the receiving and sending countries. this intergovernmental cooperation is sometimes not carried out so that there are still human rights violations against migrant workers so that their lives are very miserable in other countries. in this context, the sending and receiving countries are responsible for protecting their nationals who become migrant workers abroad.14 regulations regarding the implementation of the right to be free from discrimination against workers in the labor recruitment process can also be seen in other regulations besides the manpower law, for example, in law number 39 of 1999 concerning human rights (ham) and law number 40 of 2008 concerning elimination of racial and ethnic discrimination (pdre). in the human rights law, the protection of the right to be free from discrimination by anyone has been regulated in article 3 paragraph (2) of the human rights law, which states that everyone has the right to protection of human rights without discrimination, including the right to religion. and in article 4 of the human rights law, it is 12 waleed m. sweileh, “global output of research on the health of international migrant workers from 2000 to 2017,” globalization and health 14, no. 105 (2018): 2, https://doi.org/10.1186/s12992-018-0419-9. 13 hugo and w. r. bohning graeme, providing information to outgoing indonesian migrant workers (manila: international labour office, 2000). 14 koesrianti, “perlindungan hukum pekerja migran penata laksana rumah tangga (plrt) di luar negeri oleh negara ditinjau dari konsep tanggung jawab negara,” yustisia jurnal hukum 4, no. 2 (2015): 245–68, https://doi.org/10.20961/yustisia.v4i2.8642. legal protection of migrant workers against threats of abuse discrimination… yapiter marpi 116 stated that the right to religion is a human right that is non-degradable.15 in addition to the human rights law, what is meant by acts of racial and ethnic discrimination is regulated in article 1 number 1 of the pdre law. this article states that racial and ethnic discrimination are all forms of action that distinguish, exclude, limit, or choose based on race and ethnicity. resulting in a reduction in equal treatment in several areas of life, one of which is in the economic field, including employment. in this case, specific religious requirements can be a form of discrimination against ethnicity because of article 1 number 2 of the pdre law. consequently, article 1 describes ethnicity as a classification based on values, habits, beliefs, norms, customs, history, language, geographical conditions, and relationships. classification based on belief is closely related to religion, so providing specific religious requirements in the recruitment process is a form of ethnic discrimination. acts that include discrimination against ethnicity and race are then reaffirmed in article 4 letter of the pdre law.16 through presidential instruction number 6 of 2006 concerning policy reform of the placement and protection system for overseas migrant workers, stakeholders have taken various steps to improve placement and protection services for immigrants abroad:17 a) increasing the legal basis that forms the basis for regulating the placement and protection of indonesian migrant workers abroad in the form of decree of the minister of manpower no. 104 a/kepmen/1999 concerning the placement of immigrants abroad into the pptkiln law; b) establishment of the national agency for placement and protection of indonesian migrant workers (bnp2tki) the establishment of bnp2tki is based on presidential regulation no. 81 of 2006 concerning the national agency for the placement and protection of indonesian migrant workers; c) simplification of the tki placement service bureaucracy, such as simplifying the placement procedure from 24 nodes to 14 nodes; d) improving the quality of the immigrant workforce through training in skills, abilities, language, and mental preparation. will only place tki who are judged to have met the competency requirements as evidenced by a certificate from the professional certification institute (lsp) appointed by the ministry of manpower and transmigration; e) protecting the rights and assets of indonesian workers through the tki insurance program implemented by five insurance consortiums. in this case, the insurance consortium is also required to cooperate with legal aid agencies/lawyers in the country of placement of the tki; f) improve bilateral relations with eight placement countries, namely malaysia, south korea, jordan, kuwait, taiwan, australia, and the united arab emirates, signing a memorandum of understanding (mou). currently, the signing of mous with six countries is prepared, namely: qatar, greece, kuwait and jordan, japan, brunei darussalam, and morocco. the simplicity of employment opportunities in the country, cheap and easy delivery processes, low levels of education and skills, low salaries in their own country, and the absence of information to villages about working abroad are cited as the causes of the migration of our citizens' migration abroad as a legal undocumented immigrant worker. 15 ali ismail shaleh and raihana nasution, “perlindungan hukum tenaga kerja indonesia di luar negeri,” pandecta 5, no. 2 (2020): 211–15, https://doi.org/10.15294/pandecta.v5i2.2307. 16 i gde anrizmadha and i made sarjana, “keabsahan persyaratan agama tertentu dalam proses rekrutmen tenaga kerja di indonesia,” kertha semaya : journal ilmu hukum 8, no. 5 (2020): 678–88, https://ojs.unud.ac.id/index.php/kerthasemaya/article/view/58482. 17 adharinalti, “perlindungan terhadap tenaga kerja indonesia irregular di luar negeri,” jurnal rechts vinding: media pembinaan hukum nasional 1, no. 1 (2012): 157–73, https://rechtsvinding.bphn.go.id/artikel/art 9 jrv vol 1 no 1 protect.pdf. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 117 c. conclusion meanwhile, the institutional arrangement of legal protection for workers aims to guarantee equality in obtaining opportunities and freedom from discriminatory treatment, including freedom from different treatment based on one's religion. it is necessary to ratify it as a form of the government's seriousness in efforts to protect the rights of indonesian workers abroad as rights that can accommodate the mandate of the 1945 constitution of the republic of indonesia. the existence of this regulation is still not able to realize a complete protection system for a person/worker who wants to get a job. this is because there are still forms of discrimination carried out by employers by determining various requirements, which are migrant workers regardless of their legal status and regulating the rights that apply to migrant workers and fundamental freedoms for migrant workers. one of which is the requirement regarding certain religions during the recruitment process for workers. following the role and position of the workforce, it is necessary to develop manpower to improve the quality of the workforce and their participation in development and to increase the protection of workers. an international convention that comprehensively regulates the relationship between migration of people and human rights. looking for ways to develop the relationship between these units, either through cooperation or competition. the suggestions of this research that are useful for immigrant workers to provide is the hope of the government to be more assertive in addressing the outstanding issues regarding abuse and discrimination of immigrant workers considering that in indonesia related to race is very vulnerable causing conflict. hence, it is necessary to take decisive action to avoid conflict in society due to acts of discrimination. then it is necessary to develop and expand employment opportunities in indonesia. many people still need work, but limited employment opportunities will create competition in society for citizens themselves who need fields and increased competence. simultaneously, diplomacy between countries can solve problems that are highly regarded as complexities with different legal systems. simply put, there needs to be an affirmation of international regulations on the international convention on the protection of the rights of all migrant workers and members of their families. acknowledgments the authors would like to thank the government and previous researchers for contributing ideas and opportunities for current research, but there are few crucial inputs for the government of indonesia. the need to strengthen bipartite negotiations between trade unions and employers in negotiating wages, working conditions, and working conditions, as follow: (1) expanding cooperation both with destination countries as well as with local governments and community elements to improve the protection of migrant workers, (2) increase efforts to harmonize standardization and competency certification through crosssectoral collaboration. improving supervision related to the government structure on immigrant employment permits in the regions; increasing the understanding of migrant workers on the principles of human rights to equip migrant workers with sufficient knowledge of their rights while working abroad; expanding cooperation both with destination countries and with local governments and community elements to improve worker protection and the need to facilitate immigrant work legality permits. important input is also for migrant workers to pay attention to legality permits and competencies that need to be improved as well as physical and spiritual readiness so that ethical behavior can be maintained. important input for further researchers to improve the analysis of the article that the author is researching legal protection of migrant workers against threats of abuse discrimination… yapiter marpi 118 references adharinalti. “perlindungan terhadap tenaga kerja indonesia irregular di luar negeri.” jurnal rechts vinding: media pembinaan hukum nasional 1, no. 1 (2012): 157–73. https://rechtsvinding.bphn.go.id/artikel/art 9 jrv vol 1 no 1 protect.pdf. anrizmadha, i gde, and i made sarjana. “keabsahan persyaratan agama tertentu dalam proses rekrutmen tenaga kerja di indonesia.” kertha semaya : journal ilmu hukum 8, no. 5 (2020): 678–88. https://ojs.unud.ac.id/index.php/kerthasemaya/article/view/58482. graeme, hugo and w. r. bohning. providing information to outgoing indonesian migrant workers. manila: international labour office, 2000. hanifah, ida. “peluang tenaga kerja asing untuk bekerja di indonesia berdasarkan rancangan undang-undang cipta kerja.” de lega lata: jurnal ilmu hukumm 6, no. 1 (2020): 158–73. https://doi.org/10.30596/delegalata.v6i1.5536. indriani, maulida. “peran tenaga kerja indonesia dalam pembangunan ekonomi nasional.” gema keadilan 3, no. 1 (2016): 74–85. https://doi.org/10.3592/2. koesrianti. “perlindungan hukum pekerja migran penata laksana rumah tangga (plrt) di luar negeri oleh negara ditinjau dari konsep tanggung jawab negara.” yustisia jurnal hukum 4, no. 2 (2015): 245–68. https://doi.org/10.20961/yustisia.v4i2.8642. koh, david. “migrant workers and covid-19.” occupational & environmental medicine 77, no. 9 (2020): 634. https://doi.org/10.1136/oemed-2020-106626. ksbsi. “dilema diskriminasi buruh perempuan industri garmen ditengah pandemi.” www.ksbsi.org, 2020. https://www.ksbsi.org/home/read/1327/dilema-diskriminasiburuh-perempuan-industri-garmen-ditengah-pandemi. marpi, yapiter. “the criticism of social justice in economic gap.” insignia: journal of international relations 2 (2021): 23–31. moyce, sally c., and marc schenker. “migrant workers and their occupational health and safety.” annual review of public health 39, no. 1 (2017): 13–17. https://doi.org/10.1146/annurev-publhealth-040617-013714. muhammad, abdulkadir. hukum dan penelitian hukum. bandung: pt.citra aditya bakti, 2014. neef, andreas. “legal and social protection for migrant farm workers: lessons from covid‑19.” agriculture and human values 37 (2020): 641. https://doi.org/10.1007/s10460-020-10086-w. nuraeny, henny. “trafficking of migrant workers in indonesia: a legal enforcement and economic perspective of prevention and protection efforts.” european research studies journal 20, no. 4b (2017): 17. https://doi.org/10.35808/ersj/871. rosalina, h.n., and l. t. setyawanta. “perlindungan hukum terhadap pekerja migran sektor informal dalam perspektif teori bekerjanya hukum di masyarakat.” jurnal pembangunan hukum indonesia 2, no. 2 (2020): 174–87. https://doi.org/10.14710/jphi.v2i2.174-187. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 119 shaleh, ali ismail, and raihana nasution. “perlindungan hukum tenaga kerja indonesia di luar negeri.” pandecta 5, no. 2 (2020): 211–15. https://doi.org/10.15294/pandecta.v5i2.2307. ———. “perlindungan hukum tenaga kerja migran indonesia di arab saudi sebagai negara non internasional convention on the protection of the rights of all migrant wokers and members of their families.” jurnal yustisiabel 4, no. 1 (2020): 27–36. https://doi.org/10.32529/yustisiabel.v4i1.481. sweileh, waleed m. “global output of research on the health of international migrant workers from 2000 to 2017.” globalization and health 14, no. 105 (2018): 2. https://doi.org/10.1186/s12992-018-0419-9. legal protection of migrant workers against threats of abuse discrimination… yapiter marpi 120 41 protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita kantor advokat dan konsultan hukum abi hasan mu’an & rekan, indonesia, e-mail: fitrirohmadhanita@gmail.com submitted: august 18, 2020; reviewed: february 22, 2021; accepted: march 2, 2021 article info abstract keywords: un personnel, associated personnel, protection, attack, and jurisdiction. doi: 10.25041/lajil.v3i1.2104 the attacks and threats directed at un personnel and related personnel resulted in injuries and death. therefore, to protect these personnel, the ga established a resolution, namely the convention on safety, which aims to protect un personnel while carrying out its mission. the 1994 convention on the safety of the united nations and associated personnel regulates protected personnel and regulates prohibited acts to extradite perpetrators. the convention urges the host country (host country) to determine its jurisdiction in extraditing perpetrators of crimes against personnel un and related personnel without delay. given that each country has sovereignty in its territory and is entitled to determine a national legal system that determines national law application based on jurisdiction. a. introduction the international problems of the global system are about territorial and political security.1 there are various problems in international relations, ranging from the economy, transnational crimes to crimes against humanity, and conflicts within countries, and international conflicts.2 the problems that occur often lead to various losses; therefore, there are efforts to prevent and end these problems, namely through peacekeeping operations under the united nations authority.3 the united nations peacekeeping operation is one of the mechanisms for maintaining international peace embodied in the observer mission and the united nations peacekeeping force.4 also, peacekeeping is a technique by the united nations to help control 1 fulvio attina, “international relations and contemporary world issues”, international relations encyclopedia of life support systems (eolss) 2, (2005): 148-174, 152, doi: 10.4324/978020398413012. 2 mohamad rosyidin, “konflik internasional abad ke-21? benturan antar negara demokrasi dan masa depan politik dunia”, jurnal ilmu sosial dan ilmu politik 18, no. 3 (2015): 223-236, 223, doi: 10.22146/jsp.13137 3 adji samekto, “mengkaji peran operasi pemelihraan perdamaian pbb sebagai bagian upaya menciptakan perdamaian dunia”, jurnal hukum dan pembangunan 21, no. 1 (1991): 25-35, 25, doi: 10.21143/jhp.vol21.no1.395. 4 athambawa sarjoon, mohammed agus yusoff, “the united nations peacekeeping operations and challenges”, academic journal of interdisciplinary studies 8, no. 3 (2019): 202-211, 202, doi: 10.2478/ajis-2019-0059. volume 3 issue 1, 2021: pp. 41-50. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:fitrirohmadhanita@gmail.com protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita 42 and resolve armed conflicts. both are intended to prevent a situation from worsening to problems in international relations.5 as mandated by the un security council, peacekeeping operations are established of international sanctions and the authorization of military action through security council resolutions.6 the un peacekeeping has successful in some cases like sierra leone and mozambique, and el salvador, but they have failures in somalia, rwanda, and bosniaherzegovina.7 several elements must be taken concerning the conduct of un peacekeeping forces.8 united nations is responsible for keeping security regulated in the un charter; the security council takes responsibility.9 chapter vi un charter regulated collective security, which covered the voluntary settlement of disputes, and chapter vii regulated enforcement action.10 however, they are both peacekeepers that involve armed forces and have the authority to take actions that may be required under chapter vii of the united nations charter and aim to reduce and resolve conflicts.11 but now, un operations are not only used for conflict problems but are also used to carry out administrative functions or tasks, checking the truth of a peace agreement both internal and international to training, monitoring the movement of troop withdrawals, and mine clearance operations.12 like the mission formed by the united nations in april 1989 to march 1990, namely untag, this mission is tasked with carrying out missions in the post-conflict period, namely monitoring the peace process and general elections in namibia, south africa, under the supervision and un control. through the un’s transitional assistance group.13 peacekeepers also often volunteer to help with natural disasters in a country, for example, peacekeepers in haiti, namely minustah. minustah troops are helping haiti to rehabilitate and reconstruct the area after the earthquake. an earthquake measuring seven on the richter scale in january 2010 killed around 316 people, injured 300 people and made a million people homeless.14 the un missions above are often faced with dangers such as accidents, violence, and assaults to killings aimed at un personnel and associated un personnel. these attacks are 5 marrack goulding, “the evolution of united nations peacekeeping”, international affairs 69, no. 3 (1993): 451-464, 452, doi: 10.2307/2622309. 6 siphesihle e.mpanza, victor h. mlambo, “un peacekeeping missions in africa, a conundrum or opportunity: a case of the democratic republic of congo, south sudan and the central african republic”, african renaissance 16, no. 4 (2019): 9-32, 10, doi: 10.31920/25165305/2019/16n1a1. 7 ogunrotifa ayodeji bayo, “the factors behind successes and failures of united nations peacekeeping missions: a case of the democratic republic of congo”, journal of alternative perspectives in the social sciences 3, no. 4 (2012): 914-932, 915. 8 paolo palchetti, “international responsibility for conduct of unpeacekeeping forces: the question of attribution”, sequência (florianópolis) 70, (2015): 19-56, 26, doi: 10.5007/2177-7055.2015v36n70p19. 9 jane e. stromseth, "an imperial security council? implementing security council resolutions 1373 and 1390", georgetown law faculty publications and other works 97, (2003): 41-54, 42. 10 frederick m. burkle, “commentary united nations charter, chapter vii, article 43: now or never”, disaster medicine and public health preparedness 13, no. 4 (2017): 655-66, 665, doi: 10.1017/dmp.2018.43. 11 wolfgang weiß, “security council powers and the exigencies of justice after war”, max planck yearbook of united nations law 12, no. 1 (2008): 1-38, 1, doi: 10.1163/18757413-90000020a. 12 malcolm n. shaw qc, hukum internasional, nusa media, bandung, 2013, pg. 1241. 13 security council resolution 626 of 1989, untag monitors south african troops' withdrawal and detains swapo forces at the angola and zaire headquarters, and assists the general election process. see also security council resolution 894 of 1994. more than 1,800 election observers were sent. 14 https://republika.co.id/berita/lja8rx/tni-bakal-terjunkan-tim-pertama-ke-haiti accessed on june 12, 2020. https://republika.co.id/berita/lja8rx/tni-bakal-terjunkan-tim-pertama-ke-haiti lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 43 sometimes carried out by several rebel groups who are not responsible because to protect personnel; the ga (general assembly) formed a resolution for the protection of un personnel sent to carry out un missions in a country, with the name convention on the safety, established on december 9, 1994, in resolution 49/59 of the ga.15 this convention aims to regulate and protect un personnel and associated united nations personnel to carry out their mission correctly; this force must be protected from any violence or attacks intentionally directed at it. given that un personnel and associated un personnel’s safety is carrying out their duties, there are considerable risks. b. discussion and analysis discussion and analysis will further explain and describe 2 (two) main issues, protection of un personnel in the convention on the safety and enforcement of jurisdiction against perpetrators of attack personnel. 1. protection of un personnel in the convention on the safety un personnel are assigned with the primary objective of maintaining international peace and security; this personnel is entitled to receive protection and receive their rights as protected subjects. before the creation of this convention, 202 un personnel died in un operations.16 so that on december 9, 1994, an international convention was formed, namely the convention on the safety of the united nations and associated personnel; this convention is a legal affair governing the protection of the safety of personnel. un ga adopted this convention in resolution 49/59; creating this convention is based on concerns over the safety of personnel involved in un operations in various countries. this convention consists of 29 articles. the provisions of the articles in this convention are based on the united nations’ need to protect the personnel involved in its operations. the first part of the convention on the safety of un personnel defines or details who and what is meant by personnel. a. scope of personnel this convention divides personnel into two parts in support of un missions, namely un personnel, which includes people who are involved or deployed by the sg (sg) as members of the military, police, or civilian components involved in un operations and whose un personnel also include officials and experts of un missions. or specialized agencies or the iaea present at un missions. whereas the second is associated personnel, this personnel are people assigned by the government or by an intergovernmental or non-governmental organization based on an agreement with the sg to carry out activities to support the un operational fulfillment mandate. associated personnel themselves are divided into three different groups, namely: 1) refers to a person assigned by a government or an intergovernmental organization with un approval, such as nato. 2) associated personnel or people involved by the un sg, un personnel, and other parties’ needs. for example, the involvement of unicef and unhcr in various un peacekeeping missions, one of which is the united nations support mission in libya (unsmil). 3) associated personnel is included in non-governmental organization (ngo) bodies involved in un missions by the mandate or agreement between ngos and the un.17 15 resolution adopted by the general assembly forty-ninth session agenda item 37 (c), a/res/49/december 22 13, 1994, available online https://documents-ddsny.un.org/doc/undoc/gen/n94/601/17/pdf/n9460117.pdf?openelement 16 undoc.a/ac242/1,paraf 6, (1994). 17 article 1 point (a) & (b) convention on the safety of united nations and associated personnel, "united nations personnel", means "persons engaged or deployed by the sg of the un as members of the military, police, or civilian components of a united nations operation...." and “associated personnel" means “persons assigned by a protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita 44 un personnel and personnel involved in carrying out its operational missions have the right and authority to be protected from all harm; state parties must protect personnel as operating missions are often faced with “extraordinary risks to personnel safety”. b. scope of operation article 2 (1) states that this convention applies concerning the un and associated personnel and operations of the un, as defined in article 1, namely operations established by a competent un agency by the un charter and carried out under un authority and control. these operations shall fall into one of two categories covered by this convention; the first includes operations to maintain or restoring international peace and security. the second includes operations in which the security council or ga has declared, for the convention, that there is the exclusion of extraordinary risks to personnel’s safety in participating in operations.18 however, article 2 (2) explicitly establishes a limitation, namely that this convention does not apply to operations ratified by the un security council based on chapter vii of the un charter. in contrast, article 1 defines un operations referred to as operations established by the united nations by the un charter. they are done under un authority and state control. in particular, the convention on un personnel’s safety excludes protection for personnel who participate in official operations under the authority and control of the un security council in chapter vii. however, several un security council missions are not based on chapter vii, along with a list of these missions.19 table 1.1 list of un missions not based on chapter vii misi lokasi united nations observer mission in georgia (unomig) georgia united nations assistance mission for rwanda (unamir) rwanda united nations truce supervision organization (untso) israel united nations interim force in lebanon (unifil) lebanon specificity in the scope of un operations regulated in this convention, making the united nations form an optional protocol in 2005 to expand the scope associated with the protection law for un personnel and associated un personnel regulated in the convention on the safety.20 government or an intergovernmental organization with the agreement of the competent organ of the united nations; persons engaged by the secretary-general of the united nations or by a specialized agency or by the international atomic energy agency...” 18 article 1 point (c) convention on the safety of united nations and associated personnel "united nations operation" means an operation established by the competent organ of the united nations by the charter of the united nations and conducted under united nations authority and control: where the operation is to maintain or restore international peace and security; or...” 19 timo smit & jair van der lijn, peacekeepers under threat? fatality trends in un peace operations (stockholm: stockholm international peace research institute, 2015), 7. 20 convention on the safety of united nations and associated personnel, december 9, 1994, 2051 unts 361 (78 parties 2005-0 )-0) according to the un treaty section http://untreaty.un.org/english/treaty.asp). the scope of application of the convention, see report of the ad hoc committee on the scope of legal protection under the convention on the safety of united nations and associated personnel, un gaor 57th sess., supp. no. 52, un doc. a/57/52 (2002), report of the ad hoc, un gaor 58th sess., supp. no. 52, un doc. a/58/52 (2003), and report of the ad hoc committee, un gaor 59th sess., supp. no. 52, un doc. a/59/52 (2004). http://untreaty.un.org/english/treaty.asp lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 45 this additional protocol is the application of the scope of this convention applies concerning all other un operations established by the competent organs of the united nations by the charter of the united nations and carried out under the authority of the united nations to provide humanitarian, political, or peacebuilding assistance to the provision of other emergency assistance so that the personnel involved in the above missions need to be protected from all dangers, especially those provided for in article 9 of this convention.21 c. scope of protection un personnel and related un personnel, who are in the host country or the location where the operational mission is being carried out, are entitled to receive protection and receive their rights as stipulated in article 7.22 based on the explanation of the contents of article 7 above, it has been explained that un personnel and associated personnel, their equipment, and buildings must not be the object of an attack or any action that prevents them from releasing their mandate that is being carried out. this article also explains that state parties must take all appropriate steps to ensure personnel safety and security. the countries were taken by the countries concerned in protecting these personnel in their territory as provided in article 9, who are assigned or carry out missions outside of chapter vii. for example, in humanitarian missions or in post-conflict areas, which are generally in vulnerable peace conditions (peace vulnerabilities), conflicts can surface quickly so that the possibility of deliberate attacks aimed at un personnel and associated personnel may occur. the following lists are the number of personnel who died due to malicious acts such as attacks.23 table 1.2 number of un personnel killed misi lokasi total united nations observer mission in georgia (unomig) georgia 6 united nations assistance mission for rwanda (unamir) rwanda 14 united nations truce supervision organization (untso) israel 2 united nations interim force in lebanon (unifil) lebanon 22 based on the list, it is clear that un personnel and associated personnel need to be protected under article 7 of the convention on un personnel’s safety. the host country bears protection for un personnel and associated personnel as the operation’s organizer. article 7 is also often adopted into sofa / somas agreements between the host countries and the united nations. therefore, article 7 becomes a basis for the parties to submit and provide the right to protect personnel’s safety from crimes and deliberate attacks. the parties are obliged to cooperate with the united nations. 21 article 9 point (1) & (2) convention on the safety of united nations and associated personnel. the intentional commission of: “a murder, kidnapping, or another attack upon the person or liberty of any united nations or associated personnel; a violent attack upon the official premises, the private accommodation or the means of transportation of any united nations or associated personnel likely to endanger his or her person or liberty…” 22 article 7 convention on the safety of united nations and associated personnel. “united nations and associated personnel, their equipment, and premises shall not be made the object of attack or any action that prevents them from discharging their mandate...” 23jair van der lijn & timo smit, op cit. protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita 46 2. associated personnel and enforcement of jurisdiction against perpetrators of attack personnel. as explained, the protection of un personnel and associated personnel are borne by the host country as the operation’s organizer. therefore, the host state must take the necessary measures in cases of crimes against un personnel and associated un personnel as provided for in article 9. thus, the convention on un personnel’s safety stipulates that states parties are obliged to take appropriate measures. necessary, namely to enforce jurisdiction over the perpetrators of attacking un personnel. as regulated in article 10.24 article 10 above, which states or requires state parties, or instead requires the host country (host country) of a un mission to uphold its country’s jurisdiction against attacks or other crimes deemed to have endangered personnel. the enforcement of jurisdiction can be determined by observing the elements, namely when the crime is committed on the state’s territory or onboard a ship or aircraft registered in the state concerned. second, the suspect is a citizen of the host country or a stateless person but residing in that country. if the state has determined its jurisdiction, the state must notify the sg of the united nations. if later cancelling the jurisdiction, the state must also again notify the un sg. therefore, based on the elucidation of article 10, the appropriate territorial jurisdiction to apply in the case of the attack, by looking at the lex locus delicti25 whether the location where an attack occurs is the territory of the host country or not. if such action falls within the territory of the host country of a un mission, that country has the right to exercise jurisdiction over attacks that occur on its territory. given that each country has sovereignty in its territory and is entitled to determine a national legal system that determines national law application based on jurisdiction. the steps needed by the host country against attacks that occur in its territory are detention, investigation, and extradition of the perpetrator to the court table by its national law, considering that the crime is included in its territorial territory. the state court has the most robust jurisdiction considering that it will be easier to find witnesses and evidence so that the trial process can be more effective and efficient. in the case of reparation, the international court of justice stated that if there was a violation of law or rights, the international organization could ask the responsible state to fulfil the agreed obligations in the common interest. the form of responsibility depends on the condition of the case, whether the country’s laws are enforced or not. for example, on may 27 and july 26, 2011, there was an attack in which six troops from italy and france were injured in the head. result of two roadside bomb attacks launched on united nations interim force in lebanon (unifil) mobile troops, in the borj al-shamali area, on the outskirts of tire’s port city. unifil is a temporary force formed by the united nations on march 19, 1978, based on un security council resolution no. 425 and no. 426.26 based on the attack that occurred at unifil, it violated the regulations stipulated in the convention on the safety of un personnel, which are regulated in article 9. in this attack, the attack was aimed at the unifil troop’s car, which was the official transportation for troops, and resulted in head injuries. in the case of the attack, article 10 of the convention on un personnel’s safety requires the host state to enforce its jurisdiction over the attack. given that all sovereign independent states have jurisdiction over all people and objects within their territorial boundaries. so the lebanese state as the host country has the right to enforce its 24 article 10 convention on the safety of united nations and associated personnel “establishment of jurisdiction...” 25 locus means "place," while dictum means "action against the law, crime, and criminal acts." so locus delicti means "the scene of the crime". finally, adagio arises in the field of law with locus regit actum, which means "the place of the act determines the law applicable to the act" available on s. adiwinoto, istilah hukum (jakarta: intermasa, 1977), 34&63. 26 https://unifil.unmissions.org/unifil-mandate accessed on june 12, 2020. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 47 jurisdiction, especially the attacks carried out, including the lebanese territory, which occurred in the borj al-shamali area, on the port’s outskirts city of tire. lebanon has the right to take steps in dealing with the attack case. however, in unifil itself, lebanon’s country as the host did not address the attack’s problem as stipulated in article 13 and article 14. based on articles 13 and 14, which explain that if the circumstances allow, then the state parties in the territory suspected of being the perpetrator of the crime must take action by its national law. the steps taken are to ensure the prosecution or extradition of the convention’s suspected violators without the slightest delay. therefore, according to the elucidation of articles 13 and 14, lebanon must immediately take action by prosecuting the attackers by national law, bearing in mind that un personnel and associated un personnel must be appropriately protected. suppose lebanon cannot exercise its jurisdiction in enforcing the law against the perpetrators of the attack. in that case, the lebanese state can seek assistance from the relevant countries, namely italy and france, as stipulated in article 16, which regulates mutual legal assistance. given that currently, in several cases, the state must prosecute and prosecute the attackers and the obligation to cooperate with other countries in arresting, detaining, and prosecuting and prosecuting perpetrators of international crimes or what is known as the au dedere au judicare principle. however, if the settlement cannot be completed, the state party can apply for assistance through un organs. given that international organizations’ formation with international personalities results in new legal entities, separate from the countries’ legal entities that form them. just as a state can be held responsible for violations of an organization’s representatives’ rights, can an organization be held responsible for such violations? international organizations can assist or assist countries in the law enforcement of an act. therefore, the host country can apply for assistance through the un security council. this is understandable because the un security council has the primary responsibility of maintaining international peace and security. the un security council can immediately conduct negotiations regarding this matter and provide recommendations on resolving the problem. the un security council acts on behalf of un member countries. c. conclusion personnel into two types and describes the scope of regulated operations to regulate personnel carrying out un operational missions. the protection afforded is that their equipment and buildings must not be the object of attack or any action that prevents them from giving up their mandate. article 9, which regulates prohibited actions, such as attacks, kidnappings, or killings deliberately aimed at personnel, until article 10, which regulates state jurisdiction determination, where the state can determine its jurisdiction to protect personnel from extraditing the attackers. against personnel. according to article 10 of the convention on the safety of un personnel, the article requires the host state to enforce its jurisdiction over the attack based on the case of attacks on unifil personnel. so the lebanon state, as the host country in the case of the attack, needs to uphold the country’s jurisdiction. therefore, the appropriate territorial jurisdiction to apply in the case of the attack is seen from the lex locus delicti, which occurred in the borj al-shamali area, a suburb of tire’s port city, a part of lebanon. therefore the lebanese state must establish its territorial jurisdiction, under which lebanon is entitled to take the necessary steps. for example, detention, investigations, and extradition of the perpetrator to the court by the national law, considering that the crime falls within its territory. however, in the case of unifil itself, the lebanese state as the host did not take action on the problem of the attack as stipulated in articles 13 and 14, which state that the state party in its territory was the place where the violation occurred, the state party filed a prosecution or immediately extradited the perpetrator to the competent authorities without any exception and the slightest delay by the law of the protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita 48 state concerned. suppose lebanon is unable to exercise its jurisdiction in enforcing the law against the perpetrators of the attack. in that case, the lebanese state can seek assistance from the relevant countries, namely italy and france, as stipulated in article 16. references a. journal attina, fulvio. “international relations and contemporary world issues”, international relations encyclopedia of life support systems (eolss) 2, 2005: 148-174, doi: 10.4324/9780203984130-12. bayo, ogunrotifa ayodeji. “the factors behind successes and failures of united nations peacekeeping missions: a case of the democratic republic of congo”, journal of alternative perspectives in the social sciences 3, no. 4, 2012: 914-932. burkle, frederick m. “commentary united nations charter, chapter vii, article 43: now or never”, disaster medicine and public health preparedness 13, no. 4, 2017: 655-66, doi: 10.1017/dmp.2018.43. goulding, marrack. “the evolution of united nations peacekeeping”, international affairs 69, no. 3, 1993: 451-464, doi: 10.2307/2622309. mpanza, siphesihle e., mlambo, victor h. “un peacekeeping missions in africa, a conundrum or opportunity: a case of the democratic republic of congo, south sudan and the central african republic”, african renaissance 16, no. 4, 2019: 9-32, doi: 10.31920/2516-5305/2019/16n1a1. palchetti, paolo. "international responsibility for conduct of un peacekeeping forces: the question of attribution", sequência (florianópolis) 70, 2015: 19-56, doi: 10.5007/2177-7055.2015v36n70p19. rosyidin, mohamad. “konflik internasional abad ke-21? benturan antar negara demokrasi dan masa depan politik dunia”, jurnal ilmu sosial dan ilmu politik 18, no. 3, 2015: 223-236, doi: 10.22146/jsp.13137 samekto, adji. “mengkaji peran operasi pemelihraan perdamaian pbb sebagai bagian upaya menciptakan perdamaian dunia”, jurnal hukum dan pembangunan 21, no. 1, 1991: 25-35, doi: 10.21143/jhp.vol21.no1.395. sarjoon, athambawa., yusoff, mohammed agus. “the united nations peacekeeping operations and challenges”, academic journal of interdisciplinary studies 8, no. 3, 2019: 202-211, 202, doi: 10.2478/ajis-2019-0059. stromseth, jane e. "an imperial security council? implementing security council resolutions 1373 and 1390", georgetown law faculty publications and other works 97, 2003: 41-54. weiß, wolfgang. “security council powers and the exigencies of justice after war”, max planck yearbook of united nations law 12, no. 1, 2008: 1-38, doi: 10.1163/18757413-90000020a. b. book adiwinoto, s. istilah hukum. jakarta: intermasa, 1977. lijn, jair van der., smit, timo. peacekeepers under threat? fatality trends in un peace operations. stockholm: stockholm international peace research institute, 2015. shaw qc, malcolm n. hukum internasional. bandung: nusa media, 2013. c. legislations convention on the safety 1994 lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 49 report of the ad hoc committee on the scope of legal protection under the convention on the safety, un gaor 57th sess., supp. no. 52, un doc. a/57/52 (2002). report of the ad hoc committee on the scope of legal protection under the convention on the safety, un gaor 58th sess., supp. no. 52, un doc. a/58/52 (2003). report of the ad hoc committee on the scope of legal protection under the convention on the safety, un gaor 59th sess., supp. no. 52, un doc. a/59/52 (2004). resolution adopted by the ga forty-ninth session agenda item 37 (c), a/res/49/december 22 13 1994. security council resolution 626, 1989. security council resolution 894 of 1994. d. internet https://republika.co.id/berita/lja8rx/tni-bakal-terjunkan-tim-pertama-ke-haiti accessed on june 12, 2020. https://unifil.unmissions.org/unifil-mandate accessed on june 12, 2020. https://republika.co.id/berita/lja8rx/tni-bakal-terjunkan-tim-pertama-ke-haiti protection of peacekeeping forces based on the convention on the safety fitri rohmadhanita 50 35 legal protection of traditional dance according to international law aplia eka dewi international law departement, faculty of law, universitas lampung, indonesia email: dewiapliaeka@gmail.com submitted: march 5, 2019; reviewed: march 29, 2019; accepted: april 2, 2019 article info abstract keywords: legal protection, traditional dance, international law. doi: 10.25041/lajil.v1i1.2023 indonesia is a country that consists of various ethnics that have a diverse culture with the types and forms of art. one form of traditional art is a traditional dance that requires maintenance, preservation, and protection to be enjoyed by the next generation. traditional dance is one of the cultural products that are also prone to become victims such as claims occur in reog dance and pendet dance by neighbouring countries. this research aims to determine the legal protection of traditional dance in international law and the implementation of the legal protection of traditional dance in indonesia. a. introduction indonesia is a country that consists of various ethnics that have a diverse culture with the types and forms of traditional art that are distinctive and representative of their respective regions. one of the traditional forms of art is a traditional dance that requires maintenance, preservation, and protection to be enjoyed by the next generation.1 traditional dance is a dance that has been choreographed a process that has been standard work. traditional dance has undergone a long cultural process or cultural heritage. this type of dance is based on existing patterns of tradition or customs of the ancestors. the dance is a cultural heritage inherited from the hereditary.2 as the times progressed, it caused a more modern lifestyle change. as a result, people prefer a new culture that may be considered more practical than the local culture. indonesian youth play an important role in the preservation of indonesian art and culture, as they will become future leaders of the nation where they should have cultural awareness so that indonesian cultures can be maintained.3 the importance of traditional dance among others, namely as a means of communication, and as a means of entertainment, but the existence of conventional dance has experienced many legal problems, among others, has been a lot of claims by other countries on cultural heritage, especially in traditional indonesian dance. reog ponorogo dance from east java, pendet dance from bali, plate dance from padang, and tor tor dance from north sumatra, examples of the four have their own characteristics from their respective areas. the fourth dance has similarity because the four have not been registered in unesco (united nations educational, scientific, and cultural organization). still, the four are well known to the world because malaysia neighbouring country indonesia ever 1 harry d. fauzi dan yadi mulyadi, seni budaya (bandung: yrama widya, 2016), 93. 2 rahmida setiawati, seni tari (jakarta: departemen pendidikan nasional, 2008), 166. 3 http://rubik.okezone.com/read/30425/indonesia-dengan-gaya-kebarat-baratannya, accessed on march 28, 2017 at 16:00 wib. volume 1 issue 1, 2019: pp. 35-42. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:dewiapliaeka@gmail.com https://doi.org/10.25041/lajil.v1i1.2023 legal protection of traditional dance according to international law aplia eka dewi 36 claimed the dance.4 the number of cases a country claims against other state-owned traditional knowledge encourages the emergence of demands for protection of traditional knowledge has actually emerged since the signing of the convention on biological diversity (cbd) 1992. in relation to folklore protection, the ipr system used in indonesia as an instrument of protection against folklore is the copyright system. intellectual property rights have two almost identical branches, namely copyright (copyright) and patent (patent). in the patent, the object is limited to tangible things (tangible), not to the invisible (intangible). an invention or invention may be patented if the invention contains elements: novelty, inventive steps, and industrially applicable. whereas in article 1 (3) of the copyright act in detail mentioned various creation that is protected that is created in the field of science, art and literature.5 traditional dance regimes can not be incorporated into the legal regime of copyright and patents, because the copyright regime must find its inventor, whereas, in traditional dance, the creator/invention element can not be known because the traditional dance is communally owned. meanwhile, when incorporated into the patent regime, traditional dance does not have novelty elements because traditional dance is hereditary from generation to generation. based on the above description, then the main issues to be discussed are how to protect the law against traditional dance according to international law and implementation of legal protection against traditional dance in indonesia. methods of data collection using normative legal research methods. furthermore, he selected in the collection of data writing using secondary data is data obtained through literature study. secondary legal materials are materials that are closely related to primary legal materials and can help and analyze the literature, journals, papers, internet sites, and others that are relevant. the methods used in this research is a normative law research method, with data collection technique through literature study. then performed data analysis in the form of the qualitative analysis method. b. discussion legal protection is an act or attempts to protect the public from arbitrary acts by a ruler who is inconsistent with the rule of law, to bring order and peace to enable humans to enjoy their human dignity. if analyzed from the means of legal protection is divided into two, namely the means of protection of preventive law and repressive law protection facilities.6 satjipto rahardjo said the legal protection theory is the purpose of law in society to integrate and coordinate the interests of society.7 legal protection against traditional dance referred to in this writing is the legal protection concerning all efforts that can guarantee the existence of legal certainty in the field of traditional dance whether it is a preventive effort or legal protection that is repressive under international law. traditional dance is a type of dance that grows and live in a particular society, motivated by customs and beliefs of society, and maintained by the community as a symbol of their expression in the form of choreography (dance movement composition). the dance life in indonesia during the japanese occupation is very alarming. it is because the arts at that time should be presented for the interests of colonizers. the life of dance art during the struggle of indonesian independence in 1945-1950 is very degenerate. after the year 1950 on the advice of the government of indonesia through the culture office of ri re-emerged regional dances in indonesia which then developed rapidly. the motivation of regional dances in the independence period is as a place of association and entertainment. since 1958 appeared dances in the form of short fragments. these dances are then put together into a form of ballet. regional dances are growing and increasing rapidly as the government has sought the excavation, 4 http://liputan6.com/news/read/241888/tari-pendet-tayang-berbilang/, accessed on june 9, 2016 at 17:00 wib. 5 arif lutviansori, hak cipta dan perlindungan folklor di indonesia (yogyakarta: graha ilmu, 2010), 7. 6 https://www.merdeka.com/pendidikan/ini-pendapat-andi-hamzah-dan-simanjuntak-soal-perlindungan-hukum.html, accessed on april 2, 2017 at 15:00 wib. 7 christopher kendrick adam, joe arifiando walpa, and vina octavia, “pertanggungjawaban pemerintah republik indonesia terhadap hilangnya hak atas tanah milik warga masyarakat yang terkena abrasi di wilayah kabupaten brebes jawa tengah the republic of indonesia government responsibility of the citizen loss land affected ny abration in the region of the brebes regency of central java,” cepalo 4, no. 2 (2020): 61–68, 62, doi: 10.25041/cepalo.v4no2.1943. http://liputan6.com/news/read/241888/tari-pendet-tayang-berbilang/ http://www.merdeka.com/pendidikan/ini-pendapat-andi-hamzah-dan-simanjuntak-soallampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 37 fostering and preservation of dance by:8 1. establishing karawitan. 2. hold meetings between dance artists, as well as workshops and discussions on the art of dance. 3. provide art equipment assistance in these areas. 4. increasing the activities of dance performances. 5. hold various dancing competitions. 6. holding election of art ambassadors from each province. 7. hold national people’s dance week. 8. inventories of extinct, endangered, and emerging dances. 9. giving awards to the creators of dance and dance studios who excel. 10. provide scholarships to gifted and outstanding learners. 11. conduct provincial and national level upgrading. 12. build art centers, such as cultural park in each province. 1. legal protection against traditional dance according to international law a. convention on biological diversity (cbd) in 1992 the convention on biological diversity (cbd) provides an international guideline for the protection of traditional knowledge through article 8 (j), as well as two other articles relating to article 8 (j), namely article 17 (2) and article 18 (4). article 8 (j) governs depending on its national legislation, respecting, protecting and retaining local, indigenous and indigenous knowledge, innovations and practices that reflect traditional, traditional lifestyles, in accordance with the conservation and sustainable use of biodiversity and the promotion of its application more broadly with the consent and involvement of knowledge owners such innovations and practices encourage equitable sharing of benefits resulting from the utilization of such knowledge, innovations and practices. traditional dance belongs to article 8 (j), i.e. community practices that reflect traditionalstyle lifestyles. in addition, article 17 (2) also explains that it is mandatory to exchange information in exchange of technical, scientific and socioeconomic research results, as well as information on training and survey programs, special knowledge, indigenous and traditional knowledge, and in combination with the technologies described in article 16 (1) which states such exchanges must also involve the repatriation of information.9 article 17 can we underline that is the word original and traditional knowledge. it shows that traditional dance is also included in this article because traditional dance is one of the traditional types of knowledge. traditional knowledge is knowledge owned by the community for generations. finally, article 18 (4) is related to national laws and policies, the parties shall encourage and develop methods of cooperation for the development and use of technology, including original and traditional technologies, in order to achieve the objectives of this convention. to this end, the parties shall also promote cooperation in personnel training and expert exchange. b. convention for the safeguarding of the intangible cultural heritage 2003 (unesco convention 2003) the unesco convention 2003 governs the inheritance of noncultural heritage as a range of practices, representations, expressions, knowledge, skills and instruments of related instruments, objects, artefacts and cultural environments encompassing various communities, groups and, in certain respects, individuals who are recognized as part of cultural heritage they. this inherited cultural heritage passed down from generation to generation, is continually reinvented by communities and groups in response to their environment, their interaction with nature, and its history, and gives them a sense of identity and sustainability, to promote respect for cultural diversity and human creativity. this unesco convention 2003, the consideration will be given only to non-cultural heritage in harmony with existing international instruments on human rights, as well as the mutual respect of 8 ibid. 9 article 17 (2) convention on biologycal diversity. legal protection of traditional dance according to international law aplia eka dewi 38 inter-communities, groups and individuals, and sustainable development.10 inherited cultural heritage is a cultural heritage that can not be perceived with the eyes and hands, but an inherited cultural heritage (wbtb) can only be sensed with ears and reason. inside the cultural heritage of no objects contained the noble values of the ancestors that we must preserve.11 that intangible cultural heritage, as in article 2 (2) its form that is:12 the intangible cultural heritage, as defined in paragraph 1 above, is the manifested among other things in the following domains: a) oral traditions and expressions, including the language as a vehicle of the intangible cultural heritage; performing arts; b) social practices, rituals and festive events; c) knowledge and practices concerning nature and the universe; d) traditional craftsmanship.” traditional dance can be said to go into the explanation of article 2 (2) that is there is a word of performance art. performing arts are the activities of art that are displayed such as theatre, dance, music and circus. prior to the convention previously mentioned above, there are similarities in the explanation that existed in the wipo convention on the word performing arts. because dance is one example of the activities of the performing arts, the author believes that traditional dance into article 2 (2). unesco has several criteria of how this batik can deserve confirmation. there are five basic criteria of how cultural heritage can gain an inaugural definition of intangible cultural heritage, inventory, contribution towards visibility of intangible cultural heritage, safeguarding measures, and community participation.13 essentially, the protection of traditional dance as a non-object cultural heritage should undergo several steps in order to be approved, and copyright recognized specifically:14 1) identification, “identification: the identity of the intangible cultural heritage that occurs through the elaboration of dynamic territorial inventories.” 2) documentation, “documentation: the intangible heritage of living heritage. as a matter of fact, it is a matter of steady transformation and change. therefore, the intangible heritage can not be safeguarded but can be fixed through the production of documents. to understand procedures of trade.” 3) conservation, “conservation: the purpose of the conservation of the catalogue of systems that allows the continuing implementation of the facts.” 4) dissemination, “dissemination: the intangible heritage is said to be within the form of the protection of the collective intellectual property. because of this international community, we must ensure that the culture and culture of their bearers “the transmission of the intangible heritage can be promoted through the maintenance of new kinds of creativity.” 5) promotion, “promotion: the value of intangible heritage shall be disseminated as much as possible through the organization of events such as fairs, festivals, seminars and workshops, through media, radio, and television.” 6) the last steps is unesco’s as the intangible cultural heritage.15 the duty of the state should record or identify what the object’s cultural heritage is in the territory of each country. then, the documentation process as official archives of the state. the third is conservation, conservation is carried out the feasibility of elements that exist in the inheritance category of cultural heritage that should be patented or not. once the information is clear, it is disseminated, and promoted through mass media, electronics, social media, live viewing, talk shows, or art performances and so on. once the public knows, the state must register it to the unesco committee for the inauguration of the cultural heritage.16 10 article 2 unesco convention 2003. 11 kementerian pendidikan dan kebudayaan, pencatatan warisan budaya takbenda indonesia, 2012, https://kebudayaan.kemdikbud.go.id/pencatatanwbtb/, accessed on september 10, 2017 at 08:00 wib. 12 article 12 (2) unesco convention 2003. 13 ministry of culture and tourism, commitment of the department of culture and tourism regarding safeguarding of the culture of indonesian batik (jakarta: ministry of culture and tourism, 2008), 99. 14 emanuel valentin, “intangible search, searching the intangible: the project e.ch.i. and the inventarisation of intangible cultural heritag,” academic journal of interdisciplinary studies mcser publishing 2, no. 8 (2013): 113-120, 113, doi: 10.5901/ajis.2013.v2n8p113. 15 ibid. 16 http://www.unesco.org/culture/ich/en/directives, accessed on september 10, 2017 at 15:30 wib. http://www.unesco.org/culture/ich/en/directives lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 39 c. the convention of the world intellectual property organization (wipo) the convention of the world intellectual property organization (wipo) explains that traditional knowledge (pt) is knowledge passed down from generation to generation within a community. it is often part of the cultural and spiritual identity of the community. the wipo program at pt also addresses genetic resources (sdg) and traditional cultural expressions (ebt). although there is no accepted definition of pt at the international level, it can be said that pt in the general sense includes the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols.17 according to the wipo convention in article 2 (8) the “intellectual property” shall include rights relating to literary, artistic and scientific works, performing arts, phonograms and broadcasts. discovery in all areas of human endeavour, scientific discovery, industrial design, trademark, service mark, and commercial name and designations. protection against the unhealthy competition, and all other rights resulting from intellectual activity in industry, scientific, literary or artistic fields.18 to reach this objective, wipo, similarly to performing the administrative obligations of trade unions, undertakes a number of actions including the first of its normative actions, concerning the establishment of norms and standards for the protection and enforcement of intellectual property rights through the realization of international treaties. second, program actions concerning legal and technical aid to countries within the field of intellectual assets. third, the international category and standardization actions, concerning cooperation between the industrial property office regarding patent documentation, trademark, and industrial design; and the last is the registration and archiving actions, concerning services related to international applications for discovery and the registration of brands and industrial designs.19 d. agreement trade-related aspects of intellectual property right (trips) agreement trade-related aspects of intellectual property rights (trips) does not explain the notion of traditional knowledge, but in the trips described the intellectual property rights. intellectual property rights are rights granted to others based on the creations of their minds. they usually give the creator an exclusive right to the use of his creations for a certain period of time. the rights of literary and art writers (such as books and other writings, musical compositions, paintings, sculptures, computer programs and films) are protected by copyright, for a minimum period of 50 years after the author’s death. copyright and related rights are the rights of players (e.g. actors, singers and musicians), producers of sound recordings (voice recordings) and broadcasting organizations. the main social purpose of copyright and related rights protection is to encourage and appreciate creative work.20 relevant provisions may be found in article 2 (2) of the trips agreement, which relates to the berne convention, which contains:21 “nothing in part i of ivi of the convention, the berne convention, the rome convention and the treaty on intellectual property in respect of integrated circuits”. article 9. (1) which reads: “members will comply with articles 1 through 21 of the berne convention (1971) and the appendix thereto. however, there is no such thing as a reference to the convention on the rights of the constitution.” article 2 (1) of the berne convention, which reads: “the expression” literary and artistic works “shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expressions, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; 17 http://www.wipo.int/tk/en/, accessed on september 5, 2017 at 21:17 wib. 18 article 2 (8) wipo convention. 19 http://www.wipo.int/treaties/en/convention/summary_wipo_convention.html, accessed on october 2, 2017 at 21:00 wib. 20 https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm, accessed on september 11, 2017 at 20:00 wib. 21 https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm, accessed on october 2, 2017 at 22:00 wib. http://www.wipo.int/tk/en/ http://www.wipo.int/treaties/en/convention/summary_wipo_convention.html, https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm, legal protection of traditional dance according to international law aplia eka dewi 40 dramatic or dramaticomusical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which is assumed works exposed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.” article 2 (1) can be known as the works of literature and artwork described their choreographic works in it. choreographic works (choreography) shows that dance is also included in the explanation of the article. the choreography previously discussed in wipo, means the art of creating and transforming dance. traditional dance must have choreography because dance is formed from choreography created by a dancer or often referred to as choreographer. 2. implementation of legal protection against traditional dance in indonesia indonesia entered as a member of the wto (world trade organization) in 1994 by ratifying the results of the uruguay round agreement establishing the world organization (agreement establishing world trade organization). one of the most important parts of wto approval is the agreement on trade-related aspects of intellectual property rights including trade-in counterfeit goods (trips). in line with trips, the indonesian government has also ratified the international conventions in ipr, namely: a. paris convention for the protection of the industrial property and convention establishing the world intellectual property organization, with presidential decree no. 15 of 1997 concerning the amendment of presidential decree no. 24 of 1979; b. patent cooperation treaty (pct) and regulation under the ptc, with presidential decree no. 16 of 1997; c. trademark law treaty (tml) with presidential decree. 17 of 1997; d. bern convention for the protection of literary and artistic works with presidential decree no. 18 of 1997; e. wipo copyrights treaty (wct) with presidential decree no. 19 of 1997; following the unesco convention 2003, the presidential regulation concerning the ratification or convention for the safeguarding of the intangible cultural heritage of 2003 was enacted in jakarta on july 5, 2007, by the minister of justice and human rights of the republic of indonesia at that time that is andi mattalatta. through presidential regulation no. 78 of 2007, this presidential regulation shall come into force on the date of the stipulation.22 indonesia’s intangible cultural heritage has been regulated in the minister of education and culture of the republic of indonesia number 106 year 2013 about indonesia’s unspecified cultural heritage, enacted in jakarta on december 16, 2013. in article 1 (2) which reads:23 “indonesia’s cultural heritage is the result of practice, manifestation, expression of knowledge and skills, related to the cultural sphere, passed from generation to generation continuously through conservation and/or recreation and is the result of the culture in the form of intangible culture after going through the process of establishing culture no object”. traditional dance is included in the category of cultural heritage no object indonesia is contained in article 3, which consists of: a. traditions and oral expressions; b. performing arts; c. people’s customs, rites, and celebrations; d. knowledge and behavioural habits regarding nature and the universe; and/or e. skills and finesse of traditional crafts. the determination of the object’s cultural heritage has been held on october 17, 2014, at the national museum of jakarta. this determination is a manifestation of the commitment of indonesia which has ratified convention on protection of the intangible cultural heritage (convention for the 22 president regulation no. 78/2007. 23 http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf, accessed on december 28, 2017 at 15:00 wib. http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 41 safeguarding of the intangible cultural heritage) in 2003.24 currently, the department of culture and tourism has made various efforts to protect the utilization of cultural heritage, among others: a. requests to local governments to carry out inventories in accordance with traditional knowledge and traditional cultural expressions (since 2003) are based on circular letter of the minister of culture and tourism number: se.01/hk.501/mpk/200. b. intellectual property inventory of traditional knowledge (pt) and traditional cultural expression (ebt) such as architecture, weaving in some parts of indonesia. c. preparation of the document “overview of intellectual property protection efforts on traditional knowledge and traditional cultural expressions”. d. preparation and issuance of minister of culture and regulation concerning guidelines and criteria of cultural heritage protection of intangible. the ministry of culture and tourism has also signed a partnership with the ministry of law and human rights to protect, develop and utilize the intellectual property of traditional cultural heritage expressions of the nation. the government, in this case, has reminded the governors, regents and mayors throughout indonesia to actively conduct an inventory of local cultural works, including traditional dance. once inventoried, then the work of regional culture is registered to the department of law and human rights to get intellectual property rights (ipr). then the follow-up to the international realm of registration to unesco.25 c. conclusion legal protection of traditional dance according to international law is regulated in 4 conventions, among which the first is convention on biological diversity in 1992 through article 8 (j), article 17 (2) and article 18 (4). then the second is the unesco convention 2003 on the safeguarding of the intangible cultural heritage in chapter 2 (2). furthermore, the convention of the world intellectual property organization (wipo) in article 2 (8). the last is trips agreement article 2 (2), and article 9 (1) describes the protection of literary works and artwork through the berne convention. formally, indonesia has provisions, among others: law number 28 year 2014 on copyright, ratified unesco convention 2003 with presidential regulation no.78 of 2007, the regulation of the minister of education and culture of the republic of indonesia number 106 year 2013 about inheritance intangible culture indonesia, ratified the berne convention with presidential decree no. 18 of 1997, and wipo copyright treaty (wct) with presidential decree no. 19 of 1997. in materially, indonesia’s efforts to protect traditional dance one of them by holding an annual event that is indonesia dance at galeri indonesia kaya. then the ministry of culture and tourism has made various efforts to protect the utilization of cultural heritage, among others, requests to local governments undertake inventory, inventory of intellectual property, traditional knowledge (pt) and traditional cultural expression (ebt), compilation of documents, preparation and publishing of menbudpar on guidelines and criteria of cultural heritage protection of intangible. suggestion in the four conventions described above, in general, does not explain in detail how the process of the legal protection of traditional dance, only at the unesco convention 2003 can be found stages of how the process of protection of traditional dance into the non-object cultural heritage. it is also advisable that other conventions can also provide clearer protection of traditional dance to the stage of a stipulation that will be recognized in the world as was the case with the unesco convention 2003. the public should be able to try, maintain, preserve, and mechanize the government to be proactive in preserving traditional dance in indonesia. the author hopes dance communities that always hold indonesia dance every year is not only held in downtown jakarta alone but in all regions in indonesia 24 http://travel.kompas.com/read/2014/10/24/175400427/memelihara.warisan.budaya.tak.bend/, accessed on september 11, 2017 at 10:00 wib. 25 ibid. http://travel.kompas.com/read/2014/10/24/175400427/memelihara.warisan.budaya.tak.bend legal protection of traditional dance according to international law aplia eka dewi 42 references a. journal adam, christopher kendrick., et.al. “pertanggungjawaban pemerintah republik indonesia terhadap hilangnya hak atas tanah milik warga masyarakat yang terkena abrasi di wilayah kabupaten brebes jawa tengah the republic of indonesia government responsibility of the citizen loss land affected ny abration in the region of the brebes regency of central java,” cepalo 4, no. 2, 2020: 61–68, doi: 10.25041/cepalo.v4no2.1943. valentin, emanuel. “intangible search, searching the intangible: the project e.ch.i. and the inventarisation of intangible cultural heritage”, academic journal of interdisciplinary studies mcser publishing 2, no. 8, 2013: 113-120, doi: 10.5901/ajis.2013.v2n8p113. b. book lutviansori, arif. hak cipta dan perlindungan folklor di indonesia. yogyakarta: graha ilmu, 2010. fauzi, harry d. dan yadi mulyadi. seni budaya. bandung: yrama widya, 2016. c. regulation convention on biological diversity. heritage 2003 (unesco convention, 2003). president regulation no 78 of 2007 regarding ratification of the 2003 unesco convention. setiawati, rahmida, dkk. seni tari. departemen pendidikan nasional, 2008. unesco convention for the safeguarding of the intangible cultural. d. internet http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf, accessed on december 28, 2017. http://liputan6.com/news/read/241888/tari-pendet-tayangberbilang/, accessed on june 9, 2016. http://rubik.okezone.com/read/30425/indonesia-dengan-gayakebarat-baratannya/, accessed on march 28, 2017. http://travel.kompas.com/read/2014/10/24/175400427/memelihara.warisan.budaya.tak.benda./, accessed on september 11, 2017. http://www.unesco.org/culture/ich/en/directives http://www.wipo.int/tk/en/, accessed on september 10, 2017. http://www.wipo.int/treaties/en/convention/summary_wipo_convention.html, accessed on october 2, 2017. https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm, accessed on september 11, 2017. https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm, accessed on september 11, 2017. http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf http://liputan6.com/news/read/241888/tari-pendet-tayang-%20berbilang/ http://rubik.okezone.com/read/30425/indonesia-dengan-gaya-%20kebarat-baratannya/ http://travel.kompas.com/read/2014/10/24/175400427/memelihara.warisan.budaya.tak.benda./ http://www.unesco.org/culture/ich/en/directives http://www.wipo.int/tk/en/ http://www.wipo.int/treaties/en/convention/summary_wipo_convention.html https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm 99 state obligations related to the launch of objects into outer space under international law riza amalia faculty of law, universitas lampung, indonesia, email: rizaa237@gmail.com submitted: june 25, 2020; reviewed: july 21, 2020; accepted: august 13, 2020 article info abstract keywords: registration, space, object, obligations. doi: 10.25041/lajil.v2i2.2035 space utilization is currently experiencing a very rapid increase. many countries have carried out various missions by launching space objects. in launching an object into space, the state has several obligations that must be fulfilled, at least according to the author there are three basic obligations namely, registration, supervision, and responsibility when a loss occurs. for this reason, this study aims to provide information on how to carry out these obligations under international law. the method used in this study is the normative judicial approach. a normative juridical approach is a legal research conducted by examining library materials or secondary data as a basis for research by conducting a search of regulations and literature relating to the problem under study. the launch of space objects certainly has a regulation that is used as a standard worthy of launching space objects such as satellites. the launch is regulated in the 1976 registration convention and registered with an international institution, the international telecommunication union (article iv (1) 1976 registration convention). in addition to registering space objects, the state must also supervise these space objects to find out the development of the mission they made (article vi outer spece treaty 1967), and the last is the responsibility of a country when a loss arises due to the space object. this is regulated in the 1967 outer space treaty (article vii) and the 1972 liability convention. a. introduction outer space began to be known since the launch of the first satellite, the sputnik 1 satellite on october 4, 1957. since then, outer space has become increasingly known and a place to launch other satellites, especially from the superpowers at that time such as the united states and the soviet union.1 originally the sputnik 1 satellite was sent as a means of a power struggle between the united states and the soviet union in the case of the first country to send its 1 huala adolf, aspek-aspek negara dalam hukum internasional (jakarta: raja grafindo persada, 2002), 137. volume 2 issue 2, 2020: pp. 99-108. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:rizaa237@gmail.com https://doi.org/10.25041/lajil.v2i2.2035 state obligations related to the launch of objects into … riza amalia 100 astronauts to the moon and also to assist in the use of outer space.2 in 1961 the soviet union succeeded in sending yuri gagarin with the help of the vostok rocket as the first astronaut to succeed in outer space, and finally, the united states also succeeded as the first country to land on the moon with apollo 11 in 1969.3 very rapid technological developments, not only in the united states and the soviet union, who want to make use of outer space. now almost all countries in the world have launched objects into outer space, with various missions and goals. indonesia itself has launched 25 satellites starting in 1976 by launching indonesia’s first satellite, named palapa a1.4 launching objects into outer space such as satellites that have various purposes and functions, such as the himawari satellite from the japan meteorological agency which is used as a weather observer, which is used to monitor natural disasters and weather forecasts, climate change and the environment as well as short weather forecast capability (6 hours) including bad weather protection and predictions.5 arrangements regarding the launch of objects into outer space are usually discussed in air and outer space law books which are part of the international law branch. air law and outer space law have different arrangements, although they are often used as discussions in one book. air law usually regulates aircraft, air navigation, and commercial air transportation, while outer space law regulates outer space activities such as launching space objects and orbital regions of space objects. related to the discussion this time, the author will discuss outer space because it regulates the discussion of objects in outer space. when a country launches an object into space, then that country has several obligations that must be fulfilled both when it will be launched, when it has been launched and when returning to earth. when a country launches celestial bodies such as satellites, registration aims to facilitate the identification of ownership of space objects, when causing harm to other countries, this is regulated in the 19986 international telecommunications union convention, then regarding the supervision that must be carried out by the state that owns the object when has been launched regulated in the 1967 space agreement. the last is the space agreement 1967 and the liability convention 1972, which regulates the state’s responsibility to be responsible and provide compensation when space objects cause loss or damage to other parties and countries both in space, space air and land. in the 1998 international telecommunication union convention,7 when a country would register a space object, they also had to register the satellite orbit/space object. however, only a few states have developed the technology to launch and manufacture satellites.8 for writers 2 https://internasional.kompas.com/read/2018/10/04/17283941/kisah-sputnik-1-satelit-pertama-dunia-yangmeluncur-ke-angkasa, accessed on june 10, 2020. 3 syahmin ak, dkk, hukum udara dan luar angkasa (air and outer space law), (palembang: unsri pers, 2012), 43. 4 https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milik-indonesia-dari-waktuke-waktu, accessed on june 10, 2020. 5 nanik suryo haryani, “potensi pemanfaatan data satelit himawari”, berita dirgantara 18, no. 2 (2017): 93-98, 93. 6 muh. kadarisman, a. syukri, pendaftaran orbit satelit oleh negara berdasarkan konvensi international telecomunication union (itu) 1998 (makasar: universitas hasanudin, 2012), 49. 7 the convention is an instrument usually used in multilateral agreements which regulates limited or open important matters, and usually not simple and detailed. desia rakhma banjarani et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1 (2019): 11–18, 14, doi: 10.25041/cepalo.v3no1.1789. 8 upasana dasgupta, “reconciling state practice of in orbit satellite tranfer with the law of liability and registration in outer space”, centre for research in air and space law’s sixth monograph, global space governance and the un 2030, 2018. https://internasional.kompas.com/read/2018/10/04/17283941/kisah-sputnik-1-satelit-pertama-dunia-yang-meluncur-ke-angkasa https://internasional.kompas.com/read/2018/10/04/17283941/kisah-sputnik-1-satelit-pertama-dunia-yang-meluncur-ke-angkasa https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milik-indonesia-dari-waktu-ke-waktu https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milik-indonesia-dari-waktu-ke-waktu https://doi.org/10.25041/cepalo.v3no1.1789 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 101 for the launching country, it is important to know at least three of the obligations mentioned above, namely, registration, supervision and compensation to those injured due to the object being launched. therefore, the authors are interested in discussing more how to fulfil the obligations of launching countries under international law. the method used in this study is a normative juridical approach. a normative juridical approach is an approach that is a scientific procedure for finding truth based on scientific logic from the normative side whose object is the law itself.9 according to soerjono soekanto, the normative juridical approach is legal research carried out by examining literature or secondary data as a basic material to be investigated by searching for regulations and literature relating to the problem under study.10 b. discussion this paper shows that in the use of space, several regulations must be obeyed by all countries, these regulations can be in the form of conventions, treaties, and other international agreements. the regulation regulates a number of different things, as the authors will discuss below. the international telecommunication union convention 1998 regulates satellite registration, then the supervision that must be carried out by the state of its space object when it is launched it is regulated in the outer space treaty 1967 and most recently the outer space treaty 1967 and the liability convention 1972, which regulates obligations the state of being responsible and provide compensation when his space object causes loss or damage to other parties and countries both in space, air space and land.11 1. registration of space object when a country launches an object into space, the country must first register it with an international organization, the international telecommunication union, and report the registration to the secretary-general of the united nations.12 international telecommunication union or often abbreviated as itu is an organization that allocates global radio spectrum and satellite orbits, develops technical standards that ensure networks and technologies seamlessly interconnect, and strive to improve access to icts to underserved communities worldwide. the benefits that we can feel from the existence of itu, one of which is that we can make phone calls through cellphones and access the internet or send the email.13 registration of space objects is regulated in a convention called registration convention 1976.14 the registration convention is considered and negotiated by the legal subcommittee from 1962. this convention was adopted by the general assembly in 1974 (general assembly resolution 3235 (xxix)), opened for signed on january 14, 1975, and entered into force on september 15, 1976.15 the launching countries must prepare several things before registering the object to be launched, namely:16 a) name of launching state or states; b) an appropriate designator of the space object or its registration number; 9 johny ibrahim, teori&metodologi penelitian hukum normatif (malang: bayumedia, 2011), 57. 10 soerjono soekanto & sri mamudji, penelitian hukum normatif (suatu tinjauan singkat), (jakarta: rajawali pers, 2001), 13-14. 11 alan s. belward, “who launched what, when and why, trends in global land-cover observation capacity from civilian earth observation satellites”, isprs journal of photogrammetry and remote sensing 103, no. 120 (2015): 115-128, 115, doi: 10.1016/j.isprsjprs.2014.03.009. 12 article 2 registrtion convention 1976. 13 https://www.itu.int/en/about/pages/default.aspx, accessed on june 10, 2020. 14 zhao yun, “revisiting the 1975 registration convention: time for revision?”, australian journal of international law 11, (2004): 106-127, 106. 15 https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html, accessed on june 10, 2020. 16 article iv (1) registration convention 1976. https://doi.org/10.1016/j.isprsjprs.2014.03.009 https://www.itu.int/en/about/pages/default.aspx https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html state obligations related to the launch of objects into … riza amalia 102 c) date and territory or location of launch; d) basic orbital parameters, including nodal period, inclination, apogee,17 perigee;18 e) general function of the space object. launching state means: (i) a state which launches or procures the launching of a space object; (ii) a state from whose territory or facility a space object is launched19 so that the number of launcher states can be more than one. when registering a space object, they must choose one of the countries that will register the space object. in addition to registering space objects from the launching country, the country must also register a satellite orbit. this has been regulated based on the 1998 international telecommunication union convention.20 if we pay attention to the satellite registration requirements, it is natural that in launching a space object such as a satellite the number of launching countries is not just one, because of the large costs required to launch it.21 in indonesia itself when an institution or prospective satellite provider is required to submit a request for satellite registration to the international telecommunication union (itu) in writing to the minister. in the application for registration must attach the following:22 a. radiofrequency spectrum data used; b. coverage area; c. number of transponders; d. satellite age; e. information on the analysis of the selection of orbit locations and the system to be used; f. statement letter capable of carrying out satellite coordination; g. affidavit capable of following the satellite registration procedure; h. affidavit capable of covering the satellite registration fees set by itu; and i. declaration letter is able to fulfill all other requirements stipulated by itu. after registering then itu will conduct an evaluation, and will return the application file if any of the following occurs:23 a. there is a lack of requirements as determined by itu or is not equipped with information or data needed; or b. there is a clarification request in the form of additional information from itu. 2. supervision of space object when a country has launched its object into space, the country is asked to supervise its outer space object. this is done to protect space objects, protect the rights of other countries and protect space objects belonging to other countries. the purpose of keeping his space objects is that with the supervision of these space objects, the state can anticipate when something unexpected happens. an example is when a space object collides with another space object, the country can manoeuvre or avoid the object, so that the collision can be avoided. then is protecting the rights of other countries and protecting space objects belonging to other countries, this is intended when a country oversees space objects so that this will anticipate collisions with objects belonging to other countries that can cause harm. when the state 17 apogee is the furthest point from earth in a satellite orbit. 18 perigee is the closest distance to the earth. 19 article i (a) registration convention 1976. 20 armel kerrest, “launching spacecraft from the sea and the outer space treaty: the sea launch project”, journal air & space law 23, no. 1 (1998): 16. 21 timo wekerle, “status and trends of smallsats and their launch vehiclesan up to date review”, journal aerosp technol manage 9, no. 3 (2017): 269-286, 269, doi: 10.5028/jatm.v9i3.853. 22 article 10 (2) regulation of the minister of communication and information technology number: 13/p/m.kominfo/8/2005 concerning the implementation of telecommunications using satellite. 23 article 12 (1) regulation of the minister of communication and information technology number: 13/p/m.kominfo/8/2005 concerning the implementation of telecommunications using satellite. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 103 oversees a space object and manoeuvres when a collision will occur, this will minimize the cascade, so as to reduce the amount of space debris. supervision of space objects is regulated in article vi outer spece treaty 1967, which reads: “states parties to the treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions outlined in the present treaty. the activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate state party to the treaty. when activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this treaty shall be borne both by the international organization and by the states parties to the treaty participating in such organization.”24 from this article, we can see that the state through governmental or non-governmental institutions still has an obligation to conduct surveillance to ensure that the objective of launching the space object is achieved. 3. the launcher’s country responsibilities of space object the responsibility regarding space utilization activities is regulated in the outer space treaty 1967, namely article vii, but is only explained in general. international responsibility must be carried out by countries that carry out activities in space. as is well known that space activities can be carried out by the government and also the private sector, but in carrying out their activities, the private sector must obtain prior permission from the government of the member countries of the organization. whereas international organizations must obtain permission from the organization and the government of the member countries of the organization. the essence of article vii states that the launching country is responsible for all things arising from space activities, which are carried out by that country.25 next is about compensation. the compensation resulting from this activity in space is listed in article viii of the outer space treaty 1967.26 compensation for losses caused by space objects such as satellites, the injured party can file a claim with the launching country. the launching country, in this case, is the country that launched the object into space, or it could also be the country that helped finance the launch and also the country where the celestial object was launched. there is also the principle of preventing pollution and contamination from space objects. this principle emphasizes that activities carried out in space and other celestial bodies must be maintained so that pollution and contamination do not occur. this is very necessary for environmental sustainability that can provide benefits for the continuity of activities in space and also for the benefit of humanity on earth, so if we apply these principles, it can reduce pollution and contamination in space. this principle is stated in article ix of the outer space treaty 1967.27 in addition to the outer space treaty, the state’s responsibilities related to space activities will be more detailed in the liability convention 1972. parties that can be held liable for losses caused by space objects are not only countries that launch these space objects, but all countries that have a role in launching the spacecraft can be held liable, both in terms of funding or the country where the aircraft was launched. this is in accordance with article i paragraph (c) of 24 article vi outer spece treaty 1967. 25 siti azizah, hukum angkasa internasional, (bandar lampung: pusaka media, 2017), 15. 26 promit chatterjee, “legality of anti satellites under the space law regime”, journal astropolitics 12, no. 1 (2014): 27-45, 27, doi: 10.1080/14777622.2014.891558. 27 agus pramono, dasar-dasar hukum udara dan ruang angkasa (bogor: penerbit ghalia indonesia, 2011), 21. https://doi.org/10.1080/14777622.2014.891558 state obligations related to the launch of objects into … riza amalia 104 the liability convention 1972. then pay attention to the following article ii and iii of the liability convention 1972: “a launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.” (article ii) “in the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching state or to person s or property on board such a space object by a space of another launching state, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.” (article iii) based on the two articles above, this convention provides two alternatives in the responsibility of a country for losses caused by space objects, namely absolute liability and based on fault liability. absolute responsibility is a responsibility where the element of error does not need to be proven by the plaintiff, as the basis for compensation payments. at the same time, the responsibility based on mistakes is any act that violates the law that causes harm to others, obliging people who because of their mistakes to compensate the injured party. absolute responsibility is often known as strict liability or legal liability without fault concept; in indonesian, it is referred to as the principle of direct and immediate responsibility. there are differences of opinion about the term. some experts distinguish between absolute liability and strict liability.28 in strict liability, there is still the possibility of exclusion of liability, i.e. if the damage or accident is caused by natural disasters, warfare, coercive circumstances or third party actions. whereas in absolute responsibility, the exclusion system no longer applies, so the defendant is obliged to carry out this responsibility without reason. so if the writer concludes, what is used in the liability convention 1972 is absolute responsibility, not strict responsibility. article ii states that the launching country has an absolute responsibility, to pay compensation for losses suffered by a country due to activities carried out by the country in space, but the loss is on earth or on an aircraft that is operating. the purpose of article ii is that if there is a loss on earth or on an operating aircraft caused by space objects, the responsibility used is absolute responsibility. so that if there is damage on the surface of the earth caused by space objects, contamination of an ecosystem due to nuclear fuel from space objects causing loss or even loss of life, or aircraft that are crossing and being hit by satellites that are being launched into space. if this happens, the satellite launch country has an obligation to carry out absolute responsibility for the losses incurred.29 the existence of the principle of absolute liability in space activities is caused by the inability of the injured party to provide detailed proof as is usually done when there is a general compensation case that requires proof elements such as intentional errors and omissions.30 but in space activities, the plaintiff’s claim can be easily rejected due to technical difficulties that are only known and understood by the launching party, so it is tough to prove. whereas article iii explains that if the damage or loss suffered by a country is in space, for example, such as a collision between satellites, the responsibility used is responsibility based on fault liability so that a launching country can be found guilty if the plaintiff’s country can prove the fault of the launching state. in addition to absolute liability and based on fault liability, in space activities 28 joel a dennerley, “state liability for space object collisions: the proper interpretation of ‘fault’ for the purposes of international space law”, european journal of international law 29, no. 1 (2018): 281–301, 281, doi: 10.1093/ejil/chy003. 29 j. a. burke, “convention on international liability for damage caused by space objects: definition and determination of damages after the cosmos 954 incident”, fordham international law 8, no. 2 (1984): 255-285, 255. 30 ram s. jakhu, “regulatory framework and organization for space debris removal and on orbir servicing of satellites”, journal of space safety engineering 4, no. 4 (2017): 129137, 129, doi: 10.1016/j.jsse.2017.10.002. https://doi.org/10.1016/j.jsse.2017.10.002 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 105 also known as jointly and severally liable, which is a responsibility where launching countries are jointly responsible for damage caused by the space object they launch.31 the liability convention 1972 also regulates how to make compensation, which is regulated in article ix. a claim for compensation submitted by the claimant state to the launching country is carried out through diplomatic channels. this is done because the diplomatic channel is considered to be able to prevent one party from feeling aggrieved or burdensome. after all, the purpose of the settlement by using the diplomatic channel is to prevent conflict. meanwhile, if the country experiencing loss or claimant state does not have diplomatic relations with the launching country, the claimant country may request assistance from other countries that have diplomatic relations with the launching country. alternatively, you can also submit a claim through the un secretary-general, if the defendant and the plaintiff are both united nations member states.32 the claim must be submitted to the launching country for no more than one year. starting from the date of the loss or can also be calculated from knowing which countries are responsible. compensation to be paid must be in accordance with the currency of the injured country, or another country’s currency in accordance with the agreement. the following is the sound of article ix: “a claim for compensation for damage shall be presented to a launching state through diplomatic channels. if a state does not maintain diplomatic relations with the launching state concerned, it may request another state to present its claim to that launching state or otherwise represent its interests under this convention. it may also present its claim through the secretarygeneral of the united nations, provided the claimant state and the launching state are both members of the united nations.” in addition, there is also a way to settle the compensation contained in article xii, namely that the compensation that must be paid by the launching country must be in accordance with the principle of justice and equality. the principle of justice can be interpreted as a moral obligation to act on the basis of a fair decision on an issue. at the same time, the principle of equality is the same treatment or the same position between the parties in conflict. that is, the launching state does not feel burdened by the claimant state because of its mistakes by overestimating its claims which are not in accordance with the losses suffered by the claiming state. the following is the sound of the contents of article xii liability convention 1972: “the compensation which the launching state shall be liable to pay for damage under this convention shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, state or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.”(article xii) based on these articles, it can be seen that in the liability convention 1972 prioritizes the principle of equality or anti-discrimination, this can be seen from the implementation of the principles of justice and equality when a country resolves a compensation case. in addition, the liability convention 1972 also facilitated the settlement of compensation. this can be seen from the way the prosecution of compensation can be through many ways, namely through diplomatic channels, third parties or parties who have diplomatic relations with the two countries in dispute, and through the secretary general of the united nations if the two countries in dispute it is a member of the united nations. 31 ibid. 32 u. s. silwanus, “tanggung jawab negara peluncur benda angkasa terkait masalah luar angkasa (space debris) berdasarkan liability convention 1972”, jom:fakultas hukum 3, no. 2 (2016): 1-15, 1. state obligations related to the launch of objects into … riza amalia 106 c. conclusion in fulfilling three essential obligations that must be fulfilled by a country when launching a celestial body, there are at least three things, namely registration, supervision, and responsibility when a loss occurs. launching space objects certainly has a regulation that is used as a standard worthy of launching space objects such as satellites. the launch is regulated in the registration convention 1976 and registered with an international institution, the international telecommunication union (article iv (1) registration convention 1976), the state must prepare an application attachment to register it and itu and return it if the application does not meet the requirements. in addition to registering space objects, the state must also supervise these space objects to find out the development of the mission they made (article vi outer spece treaty 1967), and the last is the responsibility of a country when a loss arises due to the space object. this is regulated in the 1967 outer space treaty (article vii) and the 1972 liability convention. references a. journal banjarani, desia rakhma, et al. “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1, 2019: 11–18, doi: 10.25041/cepalo.v3no1.1789. belward, alan s. “who launched what, when and why, trends in global land-cover observation capacity from civilian earth observation satellites”, isprs journal of photogrammetry and remote sensing 103, no. 120, 2015: 115-128, doi: 10.1016/j.isprsjprs.2014.03.009 burke, j. a. “convention on international liability for damage caused by space objects: definition and determination of damages after the cosmos 954 incident”, fordham international law 8, no. 2, 1984: 255-285. chatterjee, promit. “legality of anti satellites under the space law regime”, journal astropolitics 12, no. 1, 2014: 27-45, doi: 10.1080/14777622.2014.891558. dasgupta, upasana. “reconciling state practice of in orbit satellite tranfer with the law of liability and registration in outer space”, centre for research in air and space law’s sixth monograph, global space governance and the un 2030, 2018. dennerley, joel a. “state liability for space object collisions: the proper interpretation of ‘fault’ for the purposes of international space law”, european journal of international law 29, no. 1, 2018: 281–301, doi: 10.1093/ejil/chy003. haryani, nanik suryo. “potensi pemanfaatan data satelit himawari”, berita dirgantara 18, no. 2, 2017: 93-98. jakhu, ram s. “regulatory framework and organization for space debris removal and on orbir servicing of satellites”, journal of space safety engineering 4, no. 4, 2017: 129-137, doi: 10.1016/j.jsse.2017.10.002. kerrest, armel. “launching spacecraft from the sea and the outer space treaty: the sea launch project”, journal air & space law 23, no. 1, 1998: 16. https://doi.org/10.25041/cepalo.v3no1.1789 https://doi.org/10.25041/cepalo.v3no1.1789 https://doi.org/10.1016/j.isprsjprs.2014.03.009 https://doi.org/10.1080/14777622.2014.891558 https://doi.org/10.1080/14777622.2014.891558 https://doi.org/10.1093/ejil/chy003 https://doi.org/10.1016/j.jsse.2017.10.002 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 107 silwanus, u. s. “tanggung jawab negara peluncur benda angkasa terkait masalah luar angkasa (space debris) berdasarkan liability convention 1972”, jom:fakultas hukum 3, no. 2, 2016: 1-15. wekerle, timo. “status and trends of smallsats and their launch vehiclesan up to date review”, journal aerosp technol manage 9, no. 3, 2017: 269-286, doi: 10.5028/jatm.v9i3.853. yun, zhao. “revisiting the 1975 registration convention: time for revision?”, australian journal of international law 11, 2004: 106-127. b. book adolf, huala. aspek-aspek negara dalam hukum internasional, jakarta: raja grafindo persada, 2002. ak, syahmin. hukum udara dan luar angkasa (air and outer space law). palembang: unsri pers, 2012. azizah, siti. hukum angkasa internasional, bandar lampung: pusaka media, 2017. ibrahim, johny. teori&metodologi penelitian hukum normatif. malang: bayumedia, 2011. kadarisman, a., & syukri, muh. pendaftaran orbit satelit oleh negara berdasarkan konvensi international telecomunication union (itu) 1998. makasar: universitas hasanudin, 2012. pramono, agus. dasar-dasar hukum udara dan ruang angkasa. bogor: penerbit ghalia indonesia, 2011. soekanto, soerjono., & mamudji, sri. penelitian hukum normatif (suatu tinjauan singkat). jakarta: rajawali pers, 2001. c. regulation liability convention 1972. outer space treaty 1967. registration convention 1976. regulation of the minister of communication and information technology number: 13/p/m.kominfo/8/2005 concerning the implementation of telecommunications using satellite. d. internet https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milikindonesia-dari-waktu-ke-waktu, accessed on june 10, 2020. https://www.itu.int/en/about/pages/default.aspx, accessed on june 10, 2020. http://dx.doi.org/10.5028/jatm.v9i3.853 https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milik-indonesia-dari-waktu-ke-waktu https://www.cnbcindonesia.com/news/20190224152921-4-57317/inilah-25-satelit-milik-indonesia-dari-waktu-ke-waktu https://www.itu.int/en/about/pages/default.aspx state obligations related to the launch of objects into … riza amalia 108 19 application of online dispute resolution (odr) in international and indonesia domain names disputes dheka ermelia putri pt. mitra sejuk selaras, indonesia, email: ermeliadheka@gmail.com submitted: january 4, 2019; reviewed: january 29, 2019; accepted: february 7, 2019 article info abstract keywords: online dispute resolution, domain names, dispute settlement. doi: 10.25041/lajil.v1i1.2021 the online dispute resolution has become a breakthrough in the world of law, especially the law of dispute settlement. online dispute resolution is used in several disputes such as e-commerce disputes and domain name. technically, part of the odr has been used by indonesia’s constitutional court, where the indonesian constitutional court utilizes video conferencing facilities in listening to witness testimonies and expert opinions. moreover, pandi (pengelola nama domain indonesia) has implemented most of the functions of the odr in resolving domain name disputes in indonesia like one of the cases that has been resolved, we call as “netflix.id” case that is the case of the netflix company who has used netflix’s name as merchandise since 1977. netflix company knowing that there is a new domain name that uses the name of the item, namely “netflix.id” is officially registered and this interferes with the trading of the netflix company, with the result that netflix company filed a lawsuit to namely removing the “netflix.id” domain name. this case was resolved without going through a face to face ppnd process (pedoman perselisihan nama domain) as a legal basis under indonesian legislation currently. online dispute resolution has been used by various world organizations including uncitral, european commission, and wipo arbitration and mediation. pandi (pengelola nama domain internet indonesia) as one of the parties that utilize the online dispute resolution has policies established under existing international regulations. still, the odr has been applied in some cases and resulted in binding decisions to the parties. a. introduction the development of internet technology has made an impact and also converted the existing cultures of dispute resolution’s general ways because the conventional dispute settlements or resolutions are considered insufficient to fulfil the international society’s requirements. the existence of a dispute resolution’s institution or mechanisms usually has a purpose of creating the best way of how a dispute is solved by peace. if we are to review the previous dispute resolution, then the settlement would only be availably done face to face. in progress, international subjects have come to a need of dispute resolution that is simpler, light volume 1, issue 1, 2019: pp. 19-26. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 2656-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:ermeliadheka@gmail.com https://doi.org/10.25041/lajil.v1i1.2021 application of online dispute resolution (odr) in international and indonesia.... dheka ermelia putri 20 cost, and saves time, which means a dispute resolution that does not obligate the parties to attend in another country’s jurisdictions, or the form of online dispute resolution or usually known as online dispute resolution. i made widnyana in his book stated that basically, online dispute resolution is the same as the conventional dispute resolution, the difference is seen in its media, which uses the internet (international network). according to i made widnyana, the online dispute resolution has 3 (three) types of dispute settlement, which are negotiation, mediation, and arbitration.1 online prescription of legal action is a subsidiary of the legal action settlement that using technologies as facilities to solve the dispute between parties. odr in this term, uses negotiation, mediation, or arbitration, or even a combination of all three. recently, the odr is often used in national scope and international dispute of domain name. the domain name comes from an english term that is translated as nama domain in bahasa, which means, a name in a region which is considered as an address in the internet world. domain name dispute in indonesia is still unfamiliar. still, indonesia already has a specific institution that occupies in dealing with domain name dispute that is known as pengelola nama domain internet indonesia and will be preferred as pandi. one of the domain name dispute case in indonesia resolved by pandi is the dispute between netflix, inc v. yulian hariyanto. the object of this case is the “netflix.id” domain name. the applicant is netflix, inc. put forward a lawsuit against yulian hariyanto because he had made and registered a domain name using the company’s trademark, causing errors and losses for the company. netflix, inc. has used the trademark since 1977 and has obtained brand legal protection from its home country, the united states and they strongly existing to the enrollment of new domain titles that use their trademark rights. eventually, netflix, inc., filed a lawsuit with the respondent to delete the domain name. netflix, inc. cast a lawsuit through pandi by using ppnd as a legal basis. the process of resolving this case is via email only, without requiring a long time by using a mediation panel from the panellists registered at pandi. the decision issued by pandi is based on a treaty of mediation amongst the sides and the mediator on this matter, namely the removal of the domain titles “netflix.id”. this dispute is solved through odr by sending objection files, attachment, and administrative notification to pandi. besides that, the parties also arranged mediation and responses through email, which the applicant eventually wins this case through the panellist judgment that stated the domain name “netflix.id” is diverted to the applicant. in this situation, odr is categorized as a part of the alternative dispute resolution (adr). the difference lies where the odr changes the traditional view into an innovative technique usage and only technology in its process.2 the idea of an odr occurred can be searched when there are a transaction and interaction done online, which triggered the dispute in the ongoing transaction.3 odr is usually used to solve the dispute of brand. the term brand here is not a merchandise brand, but it means as such in web address or domain. the domain name is a unique name that represents an organization in which that name would be used by internet users to connect with that particular organization. a domain name that has become an identity on a server in the internet world must be officially registered under the existing regulation. the allocation of an international domain name is under the authority of the internet corporation for assigned named and number (icann), a mal benefit institution domiciled in california, united states.4 the policy of icann is leading as uniformdomain name dispute resolution policy (udrp) which is an actual5 and adjective6 rule used by various parties in dealing with the issue of domain name ownership dispute in the form of 1 i made widnyana, alternatif penyelesaian sengketa and arbitrase (jakarta: fikahati aneska, 2014), 47. 2 felikas petrauskas and egle kbartiene, online dispute resolution in consumer disputes (mykolas romeris university: jurisprudencia, 2011), 2. contained in gagah satria utama, “online dispute resolution: a revolution in modern law practice”, business law review 3, no. 2 (2015): 1-6, 2, doi: 10.1016/j.icj.2015.10.006. 3 adel chandra, “penyelesaian sengketa transaksi elektronik melalui online dispute resolution (odr) kaitan dengan uu informasi and transaksi elektronik no.11 tahun 2008”, jurnal ilmu komputer 10, no. 2 (2014): 80-89, 82, doi: 10.20473/mi.v2i2.13912. 4 patricia l. bellia, cyberlaw problems of policy and jurisprudence in the information age (st. paul-mn: west, 2011), 266. 5 the substantive rule is a written benchmark or measure as a guideline that regulates rights and obligations so that it is subject to a specific regulation (udrp). 6 the adjective rule is a standart or measure that gives clear clues as to how substantive rules are enforced (the rules). http://dx.doi.org/10.20473/mi.v2i2.13912 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 21 cyber court.7 in indonesia, pandi was established on december 29, 2006, as a non-profit organization which is specifically given authority by the ministry of communication and informatics of the republic of indonesia by the decree no. 806 year 2014. the main purpose of icann and pandi’s establishment are to be a third party that would handle the domain name dispute in every country or between them. based on the review above, the author has come to an interest to discuss the application of online dispute resolution (odr) in the international domain name dispute settlement. based on the background description above, the main problems that would be discussed in this research are how is the mechanism of online dispute resolution through uncitral, european commission and wipo arbitration and mediation? and how is the application of online dispute resolution towards the domain name dispute settlement in indonesia? this research method uses juridical empirical legal research with descriptive research type. juridical empirical method is carried out to research in reality or based on objective facts in the field.8 the data collection is through literature study and document study with additional data of interview result. the data preparation was finished by data preference, data examination, data allocation and data preparation. data analysis was done descriptively for qualitative data. b. discussion 1. international online dispute resolution a) uncitral the united nations commission on international trade law, or better known as uncitral, was formed from the un generic council with prescript 2205 (xxi) on december 17, 1966, which plays a notable part in evolving a framework that continues the advanced confirmation and modernization of transnational commerce policy with organizing and encouraging the use and levitation of legislative and non-legislative appliance in the amount of key region of commercial law. these regions contain prescription of legal action, international contract practices, secure transactions, procurement and sale of goods.9 online dispute resolution through uncitral is submitted to working group iii, which is intended to discuss more online dispute resolution. as a legal entity using the online dispute resolution process, uncitral in collaboration with working group iii established a legal record called technical records on online dispute resolution. in section iii of technical records on online dispute resolution describes the odr poses stages consisting of stages including negotiations, facilitated dispute resolution and final stages. the stages of online dispute resolution through uncitral can be summarized as: 1) the applicant filed a notice through the odr platform10 http://pemohon.uncitral.org/uncitral/contact_us.html to the odr organizer. 2) afterwards, the odr organizer would inform the pleated about the existing claims and applicant by email. 3) after receiving a response11 from the pleated in the first stage, then a negotiation would be 7 meliala and jordan sebastian, “perlindungan nama domain dari tindakan pendaftaran nama domain dengan itikad buruk berdasarkan hukum positif indonesia dan uniform domain name dispute resolution policy,” kumpulan jurnal mahasiswa fakultas hukum 4, no. 2 (2015): 1-18, 8. 8 andriawan kusuma et al., “ganti rugi tanah sisa pada pembangunan jalan tol bakauheniterbanggi besar; akibat hukum dan konflik pertanahan (compensation for remaining land in the construction of the bakauheni-terbanggi besar toll road; due to laws and land conflicts),” cepalo 3, no. 1 (2019): 41–54, 43, doi: 10.25041/cepalo.v3no1.1785. 9 uncitral. (n.d). a guide to uncitral : basic facts about the united nations commission on internasional trade law (vienna, austria: uncitral secretariat, 2013), 1 10 the contents of the notice of the applicant are: the applicant's name and electronic address and the applicant's representative authorized to act for the applicant in the odr process, the applicant's electronic name and location of the applicant's claim, the claiming basis, the solution submitted for settlement of the dispute, to be used by the applicant, signature or identification and authentic means of the applicant or his representative, along with reliable documents. 11 the responses of the requested party are: the respondent's name and electronic address and the representative acting on behalf of the requested party, the response to the claim-making basis, the proposed sequence to settle disputes, signatures http://pemohon.uncitral.org/uncitral/contact_us.html http://pemohon.uncitral.org/uncitral/contact_us.html application of online dispute resolution (odr) in international and indonesia.... dheka ermelia putri 22 arranged, where the applicant and the pleated would directly negotiate with each other, but done through a technology system or a platform (email). 4) if the negotiation fails, it would be continued but arranging a settlement through a resolution facility, where the odr administrator appoints a neutral party that will communicate through a platform with the disputed parties in order to have a solution. 5) if the facilitated settlement method fails, it can be followed up by the third or final stage, whereby the odr administrator or the neutral party shall explain the nature or technical nature of the final stage of the dispute resolution to the parties.12 there is one minor of the technical records on online dispute resolution that the content fails to mention the estimation of expenses that would be necessary for this online resolution process. b) european commission the european commission (ec) is an institution in the eu that is not related to eu member states. when compared to the existing authorities within a country, the ec is an executive body. in its tenure, the european commission is accountable to the european parliament. on february 15 2016, the european commission set up an online dispute resolution (odr) portal for utilize by users residing in the european union. odr is an instrument supplied by the european commission to assist eu consumers in settling disputes outside the court. odr through the european commission is conducted using a website based platform. the goal is to assist users and merchants settle users’ contract legal action regard to purchasing stuff and merits online out of judiciary at a modest expense in a usual and rapid method. this enables users to file an online legal action in one of 23 appointed languages of the european union. this odr platform only leads legal action to the prescription of legal action agencies delivered by fellow nations. online dispute resolution through the european commission is regulated in regulation (eu) no 524/2013 of the european parliament and of the council of may 21, 2013, on the online prescription of legal action for user disputes and altering ordinance (ec) no 2006/2004 and directive 2009/22/ec (regulation on consumer odr) and commission execute regulation (eu) 2015/1051 of july 1, 2015, on the modalities for the practice of the purpose of the online prescription of legal action platform, on the modalities of the electronic plaint form and on the modalities of the collaboration amongst contact points supplied for in ordinance (eu) no 524/2013 of the european parliament and of the council on the online prescription of legal action for user disputes. the committee on executing ordinance (eu), 2015/1015 of july 1, 2015, describes the odp process consisting of stages including registration, negotiation to the final stages. the stages of online prescription of legal action through the european commission can be summarized as: 1) the applicant must sign in (if owned an account) or register through the site.13 2) afterwards, the applicant decides if one is a consumer or a trader. 3) after signing in, the applicant submits an electronic complaint form filed through the odr platform. the complaining party should be capable of keeping a concept of an electronic plaint form on the odr platform. the concept must be obtainable and editable by the complaining party before submitting the completed electronic complaint forms. the unfinished and submitted electronic complaint form design will be removed from the odr platform six months since its formation.14 4) after the system ensures that the electronic complaint forms are appropriate and complete, the odr platform must send a basic electronic order to the party’s electronic address represented by the complainant in the electronic complaint form, notifying that a plaint was filed toward it and providing such explanation.15 5) adr complaints that have been submitted through the odr platform and have been approved and signed without any delay after receiving a fulfilling plant archive relating to the dispute submitting to the odr platform on approval of the fulfil application archives as well as the or means of identification and authentic as the liability of the requested and /or representative, of any replies that contain the reasons, along with reliable documents. 12 uncitral, technical notes on online dispute resolution, (vienna, austria: uncitral secretariat, 2017), 17. 13 https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.show&lng=en, accessed on march 2, 2017. 14 article 2 commission implementing regulation (eu) 2015/1051 of 1 july 2015. 15 article 3 commission implementing regulation (eu) 2015/1051 of 1 july 2015. https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.show&lng=en lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 23 fundamental bodies of the law action. the date of approval of the fulfil application archives started on a 90 calendar day era. when a plant was sent thru the odr platform, and one of the parties refuses to face a dispute, the refusing party must submit a rejection to the odr platform without delaying the decision. respondent sends a response from complaints that have been sent. 6) when a complaint has been sent, and both parties agree, then both parties should select the desired dispute resolution body in the site https://ec.europa.eu/consumers/odr/main/index.cfm? event = main.adr.show with an estimated time of 30 working days. 7) details of complaints and responses are sent to the selected dispute resolution body. 8) the dispute resolution body has 21 working days to decide whether the agency is competent or does not handle the dispute. 9) afterwards, the results and the closing of the application would be decided by resolution agency and shall be handed over both parties. when a plaint was dispatched via the odr platform, thereout any postpone at the end of the law action, on a certain date a conclusion of the adr procedure and outcome will be included when one or both parties withdraws from the adr procedure.16 article 6 of the committee executing ordinance (eu) 2015/1051 of july 1 20 explains that there are several criteria for how the law action handed over the odr platform will not be cultivated: 1) the requested party declares that they do not want to use adr entity; 2) the parties do not approve the adr body to handle parties’ disputes until 30 calendar days toward the submission of the electronic plaint forms; 3) the adr body acquiescent upon by the sides resist to handle such disputes and is deemed to be completed. upon deletion of an existing dispute, the previously uploaded personal data will be automatically eliminated by the odr platform no later than six months since their conclusion.17 online dispute resolution through uncitral and the european commission is an overview of odr use in the world. when entering the domain of a specific dispute like a “domain name” dispute, the dispute can not be resolved through uncitral or the european commission, but can be resolved through wipo arbitration and mediation internationally and pandi in the national sphere, especially indonesia. c) wipo arbitration and mediation wipo arbitration and mediation were founded in 1994 based in geneva, switzerland and has a branch office in maxwell chambers, singapore. wipo arbitration and mediation is part of the world intellectual property organization (wipo) under the patents and technology sector and is under the leadership of ddg john sandage.18 wipo arbitration and mediation is an international resource as an alternative to timely and cost-effective dispute settlement that provides more than 1.500 neutral parties that will assist the parties in solving their problems directly or online. wipo is an international leader in the stipulation of “domain name” prescription of legal action services have a basis on udrp to be designed by wipo and adopted by the international “domain name” organization icann.19 according to udrp, three important elements become the category of a “domain name” dispute can be said of a “domain name” dispute, namely:20 1) the domain title is common or alike to another trade name or brand confusing. 2) a person hasn’t legitimate rightness or fascinates in connection with “domain title”. 3) the domain title that was recorded, and then there is someone who uses it with bad intentions. below is the “domain name” dispute settlement process through wipo arbitration and mediation tailored to the regulation for uniform domain title prescription of legal action policy: 1) the applicant filed a complaint: complaints may be filed through the website and email. completion of complaint form through the website.21 complaints given to officers should not be 16 article 5 no. 1 commission implementing regulation (eu) 2015/1051 of 1 july 2015. 17 article 6 no. 2 commission implementing regulation (eu) 2015/1051 of 1 july 2015. 18 activities by unit. available in http://pemohon.wipo.int/about-wipo/en/activities_by_unit/, accessed on november 10, 2017. 19 available in http://pemohon.wipo.int/amc/en/, accessed on november 10, 2017. 20 icann. uniform domain-name dispute resolution policy: article 4 paragraph a. 21 it is can be filled in https://www3.wipo.int/amcforms/en/udrp/eudrpcomplaint.jsp or the applicant would like to file a complaint via email, the bias complaint form is obtained on http://page applicant.wipo.int/amc/en/domains/complainant http://www.wipo.int/about-wipo/en/activities_by_unit/ http://www.wipo.int/amc/en/ application of online dispute resolution (odr) in international and indonesia.... dheka ermelia putri 24 given to the requested party. 2) verify the registrar: after the complaint is filed, the provider must request the registrar’s verification, which includes a request to lock the “domain name” in question. this is done so that “domain name” will not be transferred to other registrants during the udrp process. 3) delivery of application to the requested party: after the provider sends the requests to the requested party, the administrative process begins.22 4) the respondent submits a response: within 20 working days of the administrative process, the applicant submits a response to the organizer and requests four additional calendar days. responses23 submitted including attachments must be submitted electronically.24 5) panel selection: both parties make a panel selection, whether to use one panel or three panels listed in the provider’s list. if the parties do not choose a panellist, the provider will choose a panellist that will be fully paid by the applicant. if the applicant or the requested person chooses had a legal action determined by the three-fellows panel, the people who provide would designate three panellists in conformity with the existing procedure. 6) collection of all evidence files: when panellists have been selected, all files related to the dispute will be sent to each panel.25 panellist verdict: after the submission of all the evidence, the panellists shall counsel and decide in writing and based on the existing documents and according to the policy. if it consists of 3 panellists, then the decision is made with a majority vote.26 the verdict made is binding because only the icann and wipo can lock or divert the “domain name” in question. payment: payment is made to the wipo centre which will be distributed to the respective panellists. 2. application online dispute resolution in indonesia a) pengelola nama domain internet indonesia (pandi) pandi formed by a community and appointed by the government through the ministry of communications and information technology which is responsible for managing all “domain name” internet in indonesia other than go.id and mil.id which contained in the submission of news report “domain name” .id no. ba-343 / djat / mkominfo / 6/2007 from the director-general of aptel to pandi on december 26 2006. pandi as the board of “domain name” indonesia is directly under the “domain name” forum below a leadership of the ministry of communication and information. domain name dispute settlement policy, this policy is sourced from icann and wipo udrp.27 completion of domain name disputes through pandi, is transferred to a special agency that is penyelesaian perselisihan nama domain or ppnd is a non-litigation dispute settlement for rights of “domain name” disputes, namely “brand name” disputes, “domain name” dispute related to registered names and “domain name” dispute related to propriety prevailing in the community.28 1) settlement of disputes through ppnd is described in detail and in detail in the domain title dispute settlement policies. still, in the domain title dispute settlement guideline, the case flow through ppnd is explained briefly, concise and clear, in which the channels described include: appeals and panelist’s suggestion: the applicant filed an objection and submitted a panellist proposal to the secretariat of ppnd via email. the day of receipt of the applicant’s objection file and declared complete by the ppnd secretariat shall be counted as the effective 22 udrp model complaint and filling guidelines. available inhttp://pemohon.wipo.int/amc/en/domains/complainant/, accessed on november10, 2017. 23 ibid. point f. 24 responses consist of responding specifically to the statements and allegations contained in the application and entering any and all bases for the requested (“domain name” holders) to maintain the registration and use of disputed “domain names”, names, postal addresses and email addresses, telephone and telefax number of the requested (“domain name” holder) and authorized representative acting for the requested party in the administration process, communication method, number of panels. 25 section 5 point a and f rules for uniform domain name dispute resolution policy (the rules) 26 ibid., section 9. 27 ibid., section 15. 28 pandi, kebijakan penyelesaian perselisihan nama domain (tanggerang: pengelola nama domain internet indonesia, 2017), 1. http://www.wipo.int/amc/en/domains/complainant/ http://www.wipo.int/amc/en/domains/complainant/ http://www.wipo.int/amc/en/domains/complainant/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 25 date of commencement of the ppnd administration process.29 2) payment of court fee: the applicant shall pay a case fee no later than 5 (five) days after the effective date by bank transfer. 3) submission of the objection file to the requested party: the ppnd secretariat submits the complainant’s objection file to the applicant and the relevant registrar via email five days after receipt of payment from the applicant. 4) mediation: the ppnd secretariat gives time for the possibility of holding a 21-day mediation pending response process from the requested party. 5) submission of responses and panellist suggestions: the respondent would submit the respond and panellist suggestion in 21 days after receiving the applicant’s objection file. 6) payment of additional fee: the applicant pays an additional court fee when proposing the addition of the panellist number for 21 days after receiving the applicant’s objection file. 7) establishment and approval of panellists: the ppnd secretariat establishes the panellist’s composition in 5 days after the objection and complete response is received by the ppnd secretariat or in5 days after the deadline of the response of the requested party has expired. 8) verdict: the panellist shall render the verdict on the examination conducted after the 21st day of examination of the case upon receipt of all file completeness and response by email. 9) establishment of decision letter: pandi shall make a decree of verdict in 1 (one) day after the decision is forwarded to the applicant, requested party and related registrar. 10) announcement on the website: the ppnd secretariat announces a panelist ruling through the pandi website in 7 days after the publication of the decision. 11) entry into force of the verdict: the registrar performs the content of the decision in 21 days after the decree is issued. the registrar may cancel, assign or change the registration information of “domain name”. within 21 days after the issuance of the ppnd panellist ruling, the applicant and the applicant may file their lawsuit to the court and provide a copy of the registration of the case to the ppnd secretariat. the secretariat of the ppnd is subject to the outcome of a permanent legal court decision. c. conclusions online dispute resolution has been implemented by several international organizations, such as uncitral, european commission, wipo arbitration and mediation and pandi. each organization has its guidelines for implementing odr. however, these guidelines remain sourced from icann udrp and the rules. the object resolved by the european commission and uncitral is different from wipo arbitration and mediation and pandi. wipo arbitration and mediation and pandi, have their object of dispute, which is only to dispute domain names. application of online prescription of legal action in settlement of “domain title” legal action through ppnd pandi is almost entirely the same as wipo arbitration and mediation since both use udrp and the rules wipo. both of the procedures of law look the same unless if it completes through ppnd pandi, it can not fill the form directly in a website as applied by wipo arbitration and mediation. payments received by ppnd pandi are only available via bank transfer, while wipo arbitration and mediation can accept payment by credit card. odr through wipo arbitration and mediation and ppnd pandi comply with international regulations which are udrp and the rules wipo. decisions made by wipo and ppnd pandi are both bindings on the parties, the difference of ppnd pandi decision can be appealed through the local court because pandi is subject to the court of indonesia. references a. journal chandra, adel. “penyelesaian sengketa transaksi elektronik melalui online dispute resolution (odr) kaitan dengan uu informasi and transaksi elektronik no.11 tahun 2008”. jurnal ilmu komputer 10, no. 2, 2014: 80-89, doi: 10.20473/mi.v2i2.13912. 29 pandi, panduan penyelesaian perselisihan nama domain (ppnd), (tanggerang: pengelola nama domain internet indonesia, 2017), 3. http://dx.doi.org/10.20473/mi.v2i2.13912 application of online dispute resolution (odr) in international and indonesia.... dheka ermelia putri 26 kusuma, andriawan et al., “ganti rugi tanah sisa pada pembangunan jalan tol bakauheni-terbanggi besar; akibat hukum dan konflik pertanahan (compensation for remaining land in the construction of the bakauheni-terbanggi besar toll road; due to laws and land conflicts),” cepalo 3, no. 1, 2019: 41–54, doi: 10.25041/cepalo.v3no1.1785. meliala., sebastian, jordan. “perlindungan nama domain dari tindakan pendaftaran nama domain dengan itikad buruk berdasarkan hukum positif indonesia dan uniform domain name dispute resolution policy”, kumpulan jurnal mahasiswa fakultas hukum 4, no. 2, 2015: 1-18. b. book adolf, huala. hukum penyelesaian sengketa internasional. jakarta: sinar grafika, 2014. bellia, patricia l. cyberlaw problems of policy and jurisprudence in the information age. st. paulmn: west, 2011. muhammad, abdulkadir. hukum dan penelitian hukum. bandung: citra aditya bakti, 2004. pandi, kebijakan penyelesaian perselisihan nama domain. tanggerang: pengelola nama domain internet indonesia, 2017. pandi, panduan penyelesaian perselisihan nama domain (ppnd). tanggerang: pengelola nama domain internet indonesia, 2017. ramlan. perkembangan alternative dispute resolution (adr) di indonesia dan beberapa negara di dunia. medan: ratu jaya, 2009. soejono., abdurahman, h. metode penelitian hukum. jakart: rineka cipta, 2003. soekanto, soejono., mamudji, sri. penelitian hukum normatif: suatu tinjauan singkat. jakarta: rajawali pers, 1985. soekanto, soejono., mamudji, sri. penelitian hukum normatif: suatu tinjauan singkat. jakarta: raja grafindo persada, 2003. uncitral, technical notes on online dispute resolution. vienna, austria: uncitral secretariat, 2017. uncitral. (n.d). a guide to uncitral: basic facts about the united nations commission on internasional trade law. vienna, austria: uncitral secretariat, 2013. utama, gagah satria. (n.d). “online dispute resolution: a revolution in modern law practice”. business law review 3. widnyana, i made. alternatif penyelesaian sengketa dan arbitrase. jakarta: fikahati aneska, 2014. c. regulation commission implementing regulation (eu) 2015/1051 of july 1, 2015, icann: uniform domain name dispute resolution policy. icann: the rules for uniform domain name dispute resolution policy. d. internet http://www.wipo.int/aboutwipo/en/activities_by_unit/, accessed on november 10, 2017. http://www.wipo.int/amc/en/, accessed on november 10, 2017. http://www.wipo.int/amc/en/domains/complainant/, accessed on november 10, 2017. http://www.wipo.int/about-wipo/en/activities_by_unit/ http://www.wipo.int/about-wipo/en/activities_by_unit/ http://www.wipo.int/amc/en/ http://www.wipo.int/amc/en/domains/complainant/ 1 the urgency of using distinctive signs at muaro jambi temple site: a review from the international humanitarian law perspective akbar kurnia putra1, bernard sipahutar2, budi ardianto3 1universitas jambi, indonesia, email: akbarkurnia@unja.ac.id 2universitas jambi, indonesia, email: sipahut@gmail.com 3universitas jambi, indonesia, email: budiardianto77@yahoo.com submitted: december 29, 2019; reviewed: january 16, 2020; accepted: january 27, 2020 article info abstract keywords: muaro, temple, historical, property. doi: 10.25041/lajil.v2i1.1977 this article discusses the role of international law in the protection of the muaro jambi temple site as a cultural place. in specific, the authors highlight the regulations to use distinctive signs for historical and cultural property under the international humanitarian law. even though all contracting members should comply with the law, in reality, not all the rules are implemented, such as in muaro jambi temple site. a site is a principal object that passes the historical value of human being as well as scientific information from generation to generation; therefore, is required protection. using a normative juridical approach, the article analyses the basic problems for not applying distinctive signs at the muaro jambi temple site. a. introduction the cultural object is a world heritage. it resembles the development of human being; therefore, is needed protection from the international world—relics of cultural object pass historical value and scientific information from generation to generation. obliteration of the object would mean the destruction of civilization and the key source to unravel the chain of human life. there are two types of cultural heritage; they are intangible and tangible cultural heritage. intangible cultural heritage refers to all kind of practices, representations, expressions, knowledge, skills, tools, objects artefacts, and cultural spaces that are admitted as cultural heritage by a group of people or community. for example are art performance, tradition handcraft, verbal expression and tradition, customs, rites and celebration, and knowledge of the universe. meanwhile, tangible cultural heritage is cultural objects, property, human-made infrastructures or natural objects that have given cultural value for the user such as temple, castle, natural site, of other cultural landscape.1 1 https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budayatak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/, accessed on december 1, 2019. volume 2 issue 1, 2020: pp. 1-10. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:akbarkurnia@unja.ac.id mailto:sipahut@gmail.com mailto:budiardianto77@yahoo.com https://doi.org/10.25041/lajil.v2i1.1977 https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/ https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/ the urgency of using distinctive signs at muaro jambi temple site ... akbar kurnia, bernard s, budi a 2 preservation and protection should be given to tangible cultural objects, which are prehistorical and historical relics such as buildings, sites, statues, temples, and other historical or archaeological objects. this is in line with article 1 (1) of law number 11 of 2011 on cultural object, which states that: cagar budaya adalah warisan budaya bersifat kebendaan berupa benda cagar budaya. bangunan cagar budaya, struktur cagar budaya, situs cagar budaya, dan kawasan cagar budaya di daratdan/atau di air yang perlu dilestarikan keberadaannya karena memiliki nilai penting bagi sejarah, pengetahuan, pendidikan, agama, dan/atau kebudayaan melalui proses penetapan (cultural objects are tangible cultural heritage such as cultural buildings, cultural structures, cultural sites, and cultural area on land and/or under water whose existence are needed to be preserved because they hold an important historical, scientific, religious, and cultural value throughout their establishment process). cultural heritage is important to foster national awareness and dignity, strengthen the sense of unity to realize the national interest in the future; hence, they should be preserved and protected. there are two kinds of protection for cultural heritage. the first is protection against extinction or destruction and the second is legal protection. the first protection is to provide a means for transmitting the culture from generation to generation without having to lose some of the relics. the second protection will accommodate the realization of the first protection. legal protection is based on legal norms, especially the ones written in the rules and laws. protection over cultural heritage is not only for economical purpose. protection, in this case, leads to protection of the national identity kept in the cultural objects.2 indonesia is a nation with plenty of cultural heritage. until 2020, indonesia has enlisted many of its cultural heritage to unesco’s world heritage: cultural and natural heritage such as prambanan temple site (1991), borobudur temple (1991), singiran primordial human site (1996), the cultural landscape of bali: the subak system as a manifestation of tri hita karana philosophy (2012), komodo national park (1991), ujung kulon national park (1991), lorentz national park (1991), sumatera tropical forest (2004). for the memories of the world, indonesia registered archives of voc (2003), la galigo (2011), babad diponegoro (2013), negara kertagama (2013), and the asia-africa conference (2015. indonesia also listed keris (2008), wayang (2008), batik (2009), best practice batik (2009), angklung (2010), saman dance (2011), noken papua (2012), three genres of balinese dances (2015) for the cultural heritage of indonesia. for the category of man and biosphere, indonesia sets down komodo national park (1977), tanjung putting national park (1977), cibodas national park (1977), mount leuser national park (1981), siberut national park (1981), lore sindu national park (1993), giam siak kecil national park (200), wakatobi national park (2012), taka bone rate (2015), bromo-tengger-semeru-arjuna (2015), balmbangan (2016). since 2017, indonesia nominates the following objects and properties for intangible cultural heritage to unesco. the objects are pinisi the art of boatbuilding in south sulawesi; world cultural heritage: the old town of jakarta (formerly old batavia); 4 outlying islands of onrust, kelor, cipir and bidadari; and ombilin coal mining heritage in sawahlunto. for unesco’s global park, indonesia listsciletuh and rinjanigeopark, meanwhile, indonesia also registers panji folk stories, borobudur archive, tsunami archive and non-bloc movement archive3 as world memories. for this reason, protection and organization of cultural heritage in indonesia are important. the 1945 constitution mentions that the government is responsible for enforcing national policy on cultural advancement for the prosperity of the people. in relation to this, all past, 2 hafidz putra arifin, “politik hukum perlindungan cagar budaya di indonesia”, dialogia juridica: jurnal hukum bisnis dan investasi 10, no. 1 (2018): 470-492, 471, doi: 10.25123/vej.3008. 3 ibid. https://doi.org/10.25123/vej.3008 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 3 present and future creation and national attainments are to be used for development. cultural heritage is important to be preserved. in jambi province, specifically in muaro jambi regency, there is muaro jambi temple site. the site is the legacy of the ancient malay kingdom and the only remaining largest monument of hindu-buddhism (7-13 century bc) in indonesia with 3.981 hectares of land. the site lies at 01o26’25,0” south latitude, 01o30’22,4” south latitude, 103o37’23,7” east longitude and 103o42’45,4” east longitude4. the decision of the minister of education and culture of indonesia number 259/m/2014 states the site is a cultural heritage. the muaro jambi temple site is 20 km away from the city of jambi and 30 km away from sengeti, the capital city of muaro jambi regency. administratively, the site lies on 8 different villages, i.e. dusun baru, danaulamo, muara jambi, kemingkingluar, kemingkingdalam, telukjambu, dusun mudo, and tebatpatah village. all of these villages are located in marosebo and taman rajo sub-district of muaro jambi regency.5 the muaro jambi temple site consists of 82 ruins of ancient building which is 8 of them are restored and opened for public. the government of indonesia enrols the site to unesco’s world heritage for its outstanding universal value. it meets the requirement written in 77thparagraph of the operational guideline for the implementation of the world heritage convention. the remains of the cultural buildings and environment surrounding the site are well preserved and maintained by the local community. the natural and social environment at which the site is located is good.6 in 1989, indonesia ratified the convention concerning the protection of the world cultural and natural heritage, united nations educational, scientific, and cultural organization (unesco). the impact of this action is the obligation for indonesia to take serious efforts to preserve and maintain the cultural object and property by applying the unesco’s tool for monitoring and reporting. indonesia shall frequently report the status of the cultural heritage it owns to unesco. the international law also protects the cultural heritage with the hague convention for the protection of cultural property in the event of armed conflict. this convention 1954 (the den hague convention 1954) is the first international agreement the comprehensively administer legal protection over cultural object and property in the state or armed conflict. the convention also exclusively gives time for participating nations to prepare and take necessary steps to secure their cultural heritage in time of peace.7 the convention protects the cultural object and property in four ways. the first is protection over the deliberate attack to cultural object. the second is protection over the accidental attack to cultural object, next is the protection of the looting of the cultural object; the last is the protection of the embezzlement of the cultural object.8 considering the nature of international agreements that only apply to participate nations,9 international customs are often used as a reference to fill the regulatory loopholes. the regulation above does not provide enough information of the way the international humanitarian law could protect the muaro jambi temple site, especially about the urgency of using distinctive signs in the protection of the site as a cultural heritage. whereas, den hague convention 1954 mentions that the blue shield emblem is a distinctive sign to identify cultural objects. the blue shield emblem is used by the international community to identify protected 4 https://kebudayaan.kemdikbud.go.id/bpcbjambi/kawasan-cagar-budaya-muarajambi/, accessed on december 26, 2019. 5 ibid. 6 ibid. 7 article 3 of the den hague convention 1954 8 ibid. 9 mochtar kusumaatmadja and etty r. agoes, pengantar hukum internasional (bandung: alumni, 2003), 143. https://kebudayaan.kemdikbud.go.id/bpcbjambi/kawasan-cagar-budaya-muarajambi/ the urgency of using distinctive signs at muaro jambi temple site ... akbar kurnia, bernard s, budi a 4 cultural objects. in fact, an international committee of the blue shield (icbs) is formed to give such protection. at this time, indonesia has yet to implement the responsibility to use the blue shield emblem on its cultural heritage, even though, indonesia has domestic legal instruments to protect the cultural objects. for this reason, the article is aimed to highlight the implementation of prevailing regulation should be used in the subject of this research. this study is normative juridical research that analyses the secondary data. this is descriptive research. descriptive research shows a comparison or correlation between data to provide an overview, examination, explanation, and analysis. based on the research design, the main data in this research is secondary data taken from primary legal instruments such as international law and regulation on the subject matter. the secondary legal instruments used in this study are books, journal articles, and scientific paper and articles that will help provide further explanation of the primary legal instruments. the tertiary legal instruments are indonesia dictionary (or kbbi) and other literature used to find the definition of terminologies used in this research. documentation procedure is used to collect data. it includes utilization notes and citations as research guideline; review of legal literature, books, and other b. discussion 1. overview of cultural object etymology, the word culture in the indonesian language is budaya, originated from sanskrit buddhayah, which is a plural form of buddhi (conscious). it is something related to mind (or in the indonesian language is budi) and reasoning. others argue that the word budaya is a combination of the word budi and daya.budi refers to the spiritual element of a man, and daya refers to the physical power of a human. in conclusion, budaya means the result of the spiritual and physical power of human.10 according to john henry merryman, cultural object or cultural heritage is “object that has artistic, ethnographic, archeologic, and historical value.”11 the hague convention 1954 defines a cultural object as: 12 a. movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; b. buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in subparagraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph(a); c. centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as centres containing monuments.” article 1 of the unesco world heritage convention 1972 on the protection of the cultural heritage and natural resources includes cultural objects as part of world heritage. based on the article, cultural heritage is categorized in three types as follow: a. monuments: architectural works, works of monumental sculpture and painting, elements or structure of archaeological nature, inscriptions, cave dwellings and combination of features, which are of outstanding universal value from the point of view of history, art, or science; 10 herimanto, ilmu sosial & budaya dasar (jakarta: bumi aksara, 2011), 24. 11 unesco, unesco’s response to protect culture in crises, unit heritage (uk: united nations economic and social council, 2016), 5. 12 article 1 of the hague convention 1954. https://www.google.com/search?safe=strict&rlz=1c1chbf_enid856id856&q=united+nations+economic+and+social+council&stick=h4siaaaaaaaaaopge-lsz9u3mk1mt8iuuoiasc3lcoq0ldpkrfst83nyupnlmvpz9pol0hpzmqssqzxiq4leots8kkwswqf5mswpkqp-ehef1-t8vpzczgsfxlwuhed85mzehaxn_nk85mychaymad3tz3vtaaaa&sa=x&ved=2ahukewjk_zacotvqahvhilcahrbvakaqmxmoatafegqidhad https://www.google.com/search?safe=strict&rlz=1c1chbf_enid856id856&q=united+nations+economic+and+social+council&stick=h4siaaaaaaaaaopge-lsz9u3mk1mt8iuuoiasc3lcoq0ldpkrfst83nyupnlmvpz9pol0hpzmqssqzxiq4leots8kkwswqf5mswpkqp-ehef1-t8vpzczgsfxlwuhed85mzehaxn_nk85mychaymad3tz3vtaaaa&sa=x&ved=2ahukewjk_zacotvqahvhilcahrbvakaqmxmoatafegqidhad lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 5 b. group of buildings: a group of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art, or science; c. sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal values from the historical, aesthetic, ethnological or anthropological point of view. based on the previous discussion, it can be seen that cultural heritage covers a wide variety of objects with a different definition. other than that, different terminologies are also applied to refer to cultural objects such as cultural property, cultural heritage, or natural heritage. representation of culture in cultural object gives a significant impact on the development of a civilization notwithstanding. therefore, it needed protection. to be called a cultural heritage, an object needs to be registered, analysed, confirmed, ranked, erased, saved, secured, zoned, preserved, restored, researched, revitalized, adapted and utilized. humanitarian law is often described as a law of war, notwithstanding, in a time of peace, the law requires the member nations to prepare protection over their cultural heritage. respect and protection of these objects is the responsibility of a nation and the international community because cultural heritage carries the interest of the international community and international legacy for humanity.13 it is written in article 2 of the hague convention 1954 that the general principle of protection of cultural objects lies in the obligation to protect and respect cultural sites. preservation of cultural sites includes the implementation of necessary preparatory steps in time of peace to create a better condition as postulated in article 3 of the hague convention 1954. meanwhile, respect for cultural sites means avoiding hostile action against the sites and forbidding, preventing, and ending all kinds of thievery, looting or misuse, and any kind of vandalism against the sites. this includes the prohibition to use cultural sites for military purpose and to support military action, as mentioned in article 4 of the hague convention 1954. retaliation directed to cultural sites is also forbidden, and there is no justification or exception for any kind of retaliation. this is strongly stated in article 4 (4) of the hague convention 1954 and article 53 © of the addition protocol i of 1977.14 2. protection of cultural object humanitarian law contains a set of rules regarding the procedures for fighting and protection for victims of war.15 international humanitarian law as a branch of public international law is the first part of the international law that protects cultural objects. the embodiment of the legal protection is in the formation of conventions and international agreements such as the hague convention of 1899, the hague convention iv of 1907, and the hague convention for the protection of cultural property in the event of armed conflict of 1954. they are the first three international agreements providing binding regulations in the protection of cultural objects. later in the development, geneva convention iv relative to the protection of civilian persons in time of war is formed in 1949. two protocols following the geneva convention 1949 are then formulated; they are protocol additional to the geneva conventions of august 12 1949 (established in 1977) and second protocol to the hague 13 mirsa astuti, “efektifitas hukum humaniter internasional dalam melindungi cagar budaya di negara konflik”, delegalata: jurnal ilmu hukum 3, no. 1 (2018): 96-107, 96, doi: 10.30596/dll.v3i1.3143. 14 ibid. 15 desia rakhma banjarani et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1 (2019): 11–18, 13, doi: 10.25041/cepalo.v3no1.1789. https://doi.org/10.30596/dll.v3i1.3143 https://doi.org/10.30596/dll.v3i1.3143 the urgency of using distinctive signs at muaro jambi temple site ... akbar kurnia, bernard s, budi a 6 convention of 1954 for the protection of cultural property in the event of armed conflict (established in 1999). both additional protocols contain a legal provision in the protection of cultural object in the event of armed conflict. due to the nature of international agreements that only apply to contract parties, international customs that are universally recognized is utilized to fill in the regulation loopholes. these practices hold a significant role in the protection of cultural property in time of armed conflict. consequently, non-member or non-participating parties should also comply with international practices. part ii of article 23 (g) of the hague convention iv of 1907 explains about hostilities. the provision states are forbidden to destroy or confiscate the property of the enemy unless the destruction and confiscation of the property are demanded under the propriety in war.16 in general speaking, the article only describes the prohibition to destroy in terms of military necessity. international laws and practices require a nation to protect its cultural heritage either in time of armed conflict and in peacetime. acts of the destruction of cultural objects, according to international humanitarian law, is a war crime. this is in line with the provision of the protocol ii 1999 of the hague convention 1954, geneva convention 1949 and the additional protocol i and ii of 1977. in the list of customary rules of international humanitarian law, there are several rules related to the protection of cultural objects from iconoclast in time of armed conflict. the first rule sets the prohibitions to attack cultural objects unless it is for an imperative purpose. the second rule forbids the use of cultural objects for military purpose, and the last rule contains the provision regarding courteous action towards cultural objects including the prohibition to confiscate, destroy, and damage the cultural objects; thievery, expropriation, vandalism against the objects are also forbidden. the last rule also prohibits the illegal export of cultural objects belonging to occupied territory. iconoclast is a violation against the human rights law and the international humanitarian law. the provisions of these laws strongly mention that, for any reason, this act is not allowed.17 the procedures to protect and honour cultural heritage involve identification and inventory, application of distinctive emblem, identity card, and registration to the international register of property under special protection. the first step is the identification and inventory of historic places. when identification is made, the places should be registered. identification means an action to determine and consider if the places indeed have the cultural and historical value that needed to be protected. the protection is obtained along with the responsibilities of the national government. inventory is an action to register the historical places and surrender the inventory list to the agencies that regulate the protection of historic property. next is the application of distinctive emblem at the historic sites (article 6, article 10, and article 16 of the convention). the rules for the use of distinctive sign are, 1) according to the hague convention, the blue shield is pointing below with a royal blue square and a royal blue triangle above the square on a white background, 2) one or three emblems should be used in a triangle formation (one shield below), according to the requirements in article 17. the place to install the emblem is regulated by each nation. in the case of croatia conflict of 1992, the symbol is painted in a board and placed in two-meter high ground, in hundreds of protected monuments and buildings. according to article 17, “the distinctive emblem may not be placed on any immovable cultural 16 in addition to the prohibitions provided by special conventions, it is especially forbidden to destroy or seize the enemy‟s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”article 23, hague convention iv of 1907. 17 wilimantara, made panji, i made pasekdiantha, i made budi arsika, “penghancuran benda budaya (iconoclast) sebagai kejaahatan terhadap kemanusiaan”, kertha negara: jurnal ilmu hukum 4, no. 4 (2016): 1-6, 2. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 7 property unless at the same time there is displayed an authorization duly dated and signed by the competent authority of the high contracting party”. the third is the identity card for personnel. people responsible for the protection of cultural sites must have a special identity card with the distinctive emblem in it. the card should have a mention the surname, family name, date of birth, designated position of the personnel. it should also have a picture, signature, fingerprints of the personnel. other than that, the card should also have the stamp of the competent authority. the specific information on the card should be informed to other member nations. lastly, historic and protected cultural heritage shall be registered to the international register of property under special protection. shelters and city centres that have historic and protected monuments and immovable objects shall register these objects to international register of property under special protection that is managed by director-general of unesco. to receive the right for special protection, the national government should send a descriptive file of the location of these objects along with all the required documents.18 3. implementation of national policy on the protection of cultural property indonesia is a country with a high level of diversity; thus, it needs to have a national policy to protect its cultural property. the followings are regulations related to the protection of cultural objects:19 a. government regulation number 10 of 1993 on the enforcement of law number 5 of 1992 on cultural heritage; b. government regulation number 19 of 1995 on the preservation and utilization of cultural property in museum; c. the decision of the minister of education number 087/p1993 on registration of cultural property; d. decision of the minister of education number 062/u/1995 on the possession, domination, diversion, and termination of cultural property and/or sites; e. the decision of the minister of education number 063/u/1995 on the protection and preservation of cultural property; f. the decision of the minister of education number 064/u/1995 on research and determination of cultural property and/or sites; g. the decision of the director-general of the department of education and culture number 0248/f7iv7j.93 on guidelines of the registration of cultural property; h. regulation of the minister of culture and tourism number 4 of 2009 on museum guidelines; i. law number 11 of 2010 on cultural heritage. none of the above regulations explicitly regulate the use of distinctive sign on cultural property. whereas, in reality, the blue shield emblem is an internationally acknowledged identity. as a member nation, indonesia should install the emblem on its entire cultural heritage for identification purpose. nevertheless, law number 11 of 2010 does not regulate the instalment of the blue shield emblem. the authors believe that the government must include the requirement of using the emblem into legislative regulations to ensure international protection for the objects. 18 f. d. sitanggang, “pengrusakan tempat bersejarah dalam perang antar negara sebagai pelanggaran hukum humaniter internasional”, lex et societatis: jurnal hukum 1. no. 2 (2013): 5-14, 7. 19 jufrian murzaldan, sophia listriani, “tanggung jawab peserta tempur dalam melindungi benda cagar budaya dalam suatu konflik bersenjata”, jurnal ilmiah mahasiswa bidang hukum kenegaraan 1, no. 2 (2017): 12-21. the urgency of using distinctive signs at muaro jambi temple site ... akbar kurnia, bernard s, budi a 8 muaro jambi temple site is a nationally recognized cultural property in the province of jambi, indonesia. there six main areas of temples in the site. the area i consists of gumpung temple, tinggi temple, kembarbatu temple, telogorajo pool, and menapo-menapo. area ii is a place for astano temple and several menapo. area iii contains gedong i temple, gedong ii temple, and several menapo. area iv consists of kedaton temple and several menapo. area v is the location for kotamahligai temple, bukit segalo temple, and several menapo. lastly, area vi contains teluk i temple, chinese menapo, and several other menapo.20 referring to the prevailing law, these objects should be protected. the question is, has indonesia used the international humanitarian law instrument to protect this site? having reviewed the literature and official document concerting the administration of muaro jambi temple site, the authors found that five parties are involved in the observation of the site. the parties are jambi cultural preservation center (bpcb), palembang archaeological center, department of culture and tourism of jambi province, department of youth and sports of jambi province, and the local community of muaro jambi. the authors also found that there is no distinctive sign planted in all archaeological relics located in the site. the importance of registration and protection of cultural objects is stated in article 3 of the hague convention of 1954. the article assigns participating parties of an international convention to register and protect their cultural heritage in time of peace. article 7 (1) and (2) of the hague convention of 1954 stipulates that participating nations should insert and introduce the provisions to protect the cultural object into their military regulations. each nation should adhere to this provision.21 c. conclusion based on the previous discussion, the authors conclude that a natural and human being threatens cultural heritage in indonesia. natural threat refers to corrosion of the cultural object, and human threat means deliberate or accidental destruction, looting, and illegal trade. this threat might occur in both peace and armed conflict time.22 in a time of peace, law of the republic of indonesia number 11 of 2010 underlies a criminal penalty for anyone who deliberately destroys, removes, or dispels cultural object. for this reason, muaro jambi temple site should apply a distinctive sign to protect the archaeological relics in the site. references a. journal and thesis arifin, hafidz putra. “politik hukum perlindungan cagar budaya di indonesia”, dialogia juridica: jurnal hukum bisnis dan investasi 10, no. 1, 2018: 470-492, doi: 10.25123/vej.3008. astuti, mirsa. “efektifitas hukum humaniter internasional dalam melindungi cagar budaya di negara konflik”, delegalata: jurnal ilmu hukum 3, no. 1, 2018: 96-107, doi: 10.30596/dll.v3i1.3143. banjarani, desia rakhma et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law 20 rusmiyati, “museum situs di kawasan muara jambi”, thesis, universitas indonesia, (2014): 7273. 21 taufik rahmat nugraha, “urgensi perlindungan benda bersejarah di indonesia berdasarkan hukum humaniter internasional”, mimbar hukum 31, no. 3 (2019): 384-401, 385, doi: 10.22146/jmh.46446. 22 ibid., 386. https://doi.org/10.25123/vej.3008 https://doi.org/10.30596/dll.v3i1.3143 https://doi.org/10.22146/jmh.46446 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 9 (case study of the iraq and syria conflict),” cepalo 3, no. 1, 2019: 11– 18, doi: 10.25041/cepalo.v3no1.1789. murzaldan, jufrian., listriani, sophia. “tanggung jawab peserta tempur dalam melindungi benda cagar budaya dalam suatu konflik bersenjata”, jurnal ilmiah mahasiswa bidang hukum kenegaraan 1, no. 2, 2017: 12-21. nugraha, taufik rahmat. “urgensi perlindungan benda bersejarah di indonesia berdasarkan hukum humaniter internasional”, mimbar hukum 31, no. 3, 2019: 384-401, doi: 10.22146/jmh.46446. rusmiyati. “museum situs di kawasan muara jambi”, thesis, universitas indonesia, 2014. sitanggang, f. d. “pengrusakan tempat bersejarah dalam perang antar negara sebagai pelanggaran hukum humaniter internasional”, lex et societatis: jurnal hukum 1. no. 2, 2013: 5-14. wilimantara, made panji, i made pasekdiantha, i made budi arsika, “penghancuran benda budaya (iconoclast) sebagai kejaahatan terhadap kemanusiaan”, kertha negara: jurnal ilmu hukum 4, no. 4, 2016: 1-6. b. book herimanto. ilmu sosial & budaya dasar. jakarta: bumi aksara, 2011. kusumaatmadja, mochtar dan etty r. agoes. pengantar hukum internasional. bandung: alumni, 2003. unesco. unesco’s response to protect culture in crises, united heritage. uk: united nations economic and social council, 2016. c. regulation convention iv respecting the laws and customs of war on landtahun 1907. convention on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property 1970. convention the protection of civilian persons in time of war,” international committee of the red cross, 1999. geneva convention iv relative to the protection of civilian persons in time of war 1949. hague convention for the protection of cultural property in the event of armed conflict1954. second protocol to the hague convention of 1954 for the protection of cultural property in the event of armed conflict protocol additional to the geneva conventions of august 12 1949 unesco world heritage convention 1972. d. internet https://kebudayaan.kemdikbud.go.id/bpcbjambi/kawasan-cagar-budaya-muarajambi/, accessed on december 26, 2019. https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapanwarisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-worldheritage-indonesia-oleh-unesco/, accessed on december 1, 2019. https://doi.org/10.22146/jmh.46446 https://www.google.com/search?safe=strict&rlz=1c1chbf_enid856id856&q=united+nations+economic+and+social+council&stick=h4siaaaaaaaaaopge-lsz9u3mk1mt8iuuoiasc3lcoq0ldpkrfst83nyupnlmvpz9pol0hpzmqssqzxiq4leots8kkwswqf5mswpkqp-ehef1-t8vpzczgsfxlwuhed85mzehaxn_nk85mychaymad3tz3vtaaaa&sa=x&ved=2ahukewjk_zacotvqahvhilcahrbvakaqmxmoatafegqidhad https://www.google.com/search?safe=strict&rlz=1c1chbf_enid856id856&q=united+nations+economic+and+social+council&stick=h4siaaaaaaaaaopge-lsz9u3mk1mt8iuuoiasc3lcoq0ldpkrfst83nyupnlmvpz9pol0hpzmqssqzxiq4leots8kkwswqf5mswpkqp-ehef1-t8vpzczgsfxlwuhed85mzehaxn_nk85mychaymad3tz3vtaaaa&sa=x&ved=2ahukewjk_zacotvqahvhilcahrbvakaqmxmoatafegqidhad https://kebudayaan.kemdikbud.go.id/bpcbjambi/kawasan-cagar-budaya-muarajambi/ https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/ https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/ https://kebudayaan.kemdikbud.go.id/ditwdb/menuju-warisan-budaya-dunia-proses-penetapan-warisan-budaya-tak-benda-intangible-cultural-heritage-dan-warisan-dunia-world-heritage-indonesia-oleh-unesco/ the urgency of using distinctive signs at muaro jambi temple site ... akbar kurnia, bernard s, budi a 10 73 the concept of the archipelagic province and archipelagic state in the perspective of national and international law muhammad risnain faculty of law, universitas mataram, indonesia, e-mail: risnain82@gmail.com submitted: june 18, 2021; reviewed: july 12, 2021; accepted: august 10, 2021 article info abstract keywords: characteristic, archipelagic, province. doi: 10.25041/lajil.v3i2.2367 the concept of an archipelagic province in law number 23 of 2014 is interesting, especially international law of the sea and indonesian national law. this research is due to the concept of an archipelagic state's special treatment, which is a concept derived from the 1982 united nations convention on the law of the sea (unclos). this research accommodates the state's interests with special conditions for states that are geographical, social, political, and economic conditions by fulfilling the 1982 unclos. the state is a subject of the international, but the archipelagic province receives special treatment from the central government in dau and dak. the problem in this research is how the concept of an archipelagic province and state is based on national and international law? the research method used is normative juridical research based on the applicable laws and regulations. the analysis is carried out using a descriptive method that explains the concept of an archipelagic province and state from the perspective of national and international law. the archipelagic state's international and national law concept cannot be applied to mutatis mutandis. the criteria for an archipelagic state as an intrinsic geographical, economic, defense and security, and political unit have historically been regarded as such. the 1982 unclos and national laws cannot be applied in determining the criteria for an archipelagic province. according to the elucidation of law number 23 of 2014 concerning regional government, the archipelagic province based on geographical and cultural conditions is a moderate concept. this concept is beneficial in determining the characteristics of an archipelagic province. a. introduction the archipelagic province is associated with various aspects, including regional autonomy, a unitary state, an archipelago perspective, international law, and national law. the inclusion of the bill of law or rancangan undang-undang (ruu) on government administration in the archipelago province in the 2009-2014 national legislation program or program legislasi nasional (prolegnas) and the 2014-2019 prolegnas, from a formal legal perspective, has made a critical bill to be discussed and enacted to be a law. although the volume 3 issue 2, julydecember 2021: pp. 73-84. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil the concept of the archipelagic province and archipelagic state … muhammad risnain 74 indonesia house of representatives and the president have not ratified it into law, this bill leaves a problem with the substance regulated in it.1 the archipelagic province concept needs to be studied from a unitary state with a vertical power system distribution. this distribution is implemented through the principle of decentralization, both through regional autonomy and de-concentration. these two things will undoubtedly be conceptually contradictory, the decentralization system with regional autonomy.2 de-concentration is a policy choice that the government and parliament have taken to accommodate regional interests within the framework of the unitary state of the republic of indonesia. still, a particular government system for archipelagic regions will conflict with the uniformity of autonomy regardless of a geographic area.3 a province with archipelagic characteristics has been regulated in article 28 to 30 law number 23 of 2014 concerning regional governance. this law regulates special treatment for archipelagic provinces, which are different from other provinces in indonesia. the special treatment in question includes, firstly, the authority to manage natural resources,4 secondly, a special assignment from the central government to the archipelagic province in the marine sector,5 third, special policy for a general allocation fund (dana alokasi umum/dau) and special allocation fund (dana alokasi khusus/dak). in addition to the regulatory issues above, special arrangements for archipelagic provinces are currently still the aspirations of various provinces that geographically have more than two islands. two problems underlie the idea of forming an archipelagic province in indonesia. first, several provinces are still fighting for special treatment for provinces with archipelagic characteristics such as north sulawesi, north maluku, maluku, bangka belitung, and riau islands, west nusa tenggara, and east nusa tenggara. secondly, a province demand wants to be independent, such as establishing sumbawa province from west nusa tenggara province, the buton islands province in southeast sulawesi, the nias islands province in north sumatra, and the discourse of splitting the province of east nusa tenggara into three provinces. the concept of an archipelagic province in law number 23 of 2014 is interesting, especially international law of the sea and indonesian national law. the concept of special treatment of an archipelagic state is derived from the 1982 united nations convention on the law of the sea (unclos), which accommodates the special conditions for states' geographical, social, political, and political-economic conditions. due to geographical conditions, the archipelagic state receives special treatment from the central government in dau and dak. this particular treatment fulfills the 1982 unclos, while the concept of an archipelagic province is based on a province with archipelagic characteristics. the problem in this research is how the concept of an archipelagic province and state is based on national and international law. therefore, this study will examine and analyze the laws, regulations, and decisions related to legal issues in this research. the research method used is normative juridical research based on the applicable laws and regulations.6 the 1 nikmatul huda, desentralisasi asimetris dalam nkri: kajian terhadap daerah istimewa, daerah khusus dan otonomi khusus (bandung: nusamedia, 2014). 2 bagir manan, menyongsong fajar otonomi daerah, 5th ed. (yogyakarta: psh fh uii, 2005). 3 bagir manan, hubungan antara pusat dan daerah menurut uud 1945 (jakarta: pustaka sinar harapan, 1994). 4 mudiyati rahmatunnisa, reginawanti hindersah, and tri hanggono achmad, “why regions with archipelagic characteristics in indonesia also need asymmetric decentralization?,” jurnal bina praja 10, no. 2 (2018): 259, https://doi.org/10.21787/jbp.10.2018.251-261. 5 zainuri, “pembentukan hukum dan perlakuan khusus wilayah provinsi kepulauan dalam sistem pemerintahan daerah di indonesia,” perspektif hukum 18, no. 1 (2019): 86, https://doi.org/10.30649/ph.v18i1. 6 kornelius benuf and muhamad azhar, “metodologi penelitian hukum sebagai instrumen mengurai permasalahan hukum kontemporer,” gema keadilan 7, no. 1 (2020): 23, https://doi.org/10.14710/gk.7.1.20-33. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 75 analysis is carried out using a descriptive method that explains the concept of an archipelagic province and state from the perspective of national and international law. data were collected from various literature to obtain relevant legal instruments and secondary research sources, such as books and national or international journals, which then will be analyzed qualitatively.7 b. discussion 1. archipelagic state in the perspective of international law of the sea as reference material, we quote article 46 of the 1982 united nations convention on the law of the sea (unclos) concerning the archipelagic states as follows:8 a) “archipelagic state” means a state constituted wholly by one or more archipelagos and may include other islands; b) "archipelago" means a group of islands, including parts of islands, interconnecting waters, and other natural features which are so closely interrelated that such islands, waters, and other natural features form an intrinsic geographical, economic, and political entity, or which historically have been regarded as such. based on the articles above, an archipelagic state consists of one or more islands and may include other islands.9 archipelago means a group of islands including parts of islands, the waters between them, and other scientific forms that are so closely related that the islands, waters, and other natural features constitute an intrinsic geographical, economic, and political entity historically regarded as such.10 the recognition of an archipelagic state as a separate regime in the 1982 unclos has implications for the legal status of archipelagic waters. according to etty r agoes, three legal implications arise from a country becoming an archipelagic state: the sovereignty of an archipelagic state over the waters enclosed by archipelagic waters regardless of the depth and distance from the coast. the sovereignty includes the air space above it, the seabed and the land below it, and the natural resources contained therein. the three archipelagic countries are sui generis (special regimes) because apart from being archipelagic waters, it is also recognized in the existence of innocent passage in archipelagic waters. besides giving rights inherent in the archipelagic state, the archipelagic state also creates legal obligations. according to the 1982 unclos, there are obligations for archipelagic countries, namely: a) respect applicable international treaties and recognize the traditional fishing rights of neighboring countries directly adjacent to each other. b) respecting marine cables installed in other countries, permitting maintenance and replacement of these cables. c) respect the right of innocent passage of ships of all countries. d) respect the right of archipelagic waters lane passage for all types of foreign ships and aircraft. 7 muhammad insan tarigan raisha hafandi, “equal access to the vaccination of covid-19 in southeast asia: can asean be a catalyst?,” hasanuddin law review 7, no. 2 (2021): 121, https://doi.org/10.20956/halrev.v7i2.2875. 8 evan a. laksmana and ristian a. supriyanto, “abandoned at sea: the tribunal ruling and indonesia’s missing archipelagic foreign policy,” asian politics & policy 10, no. 2 (2018): 305, https://doi.org/10.1111/aspp.12393. 9 yety rochwulaningsih et al., “marine policy basis of indonesia as a maritime state: the importance of integrated economy,” marine policy 108 (2019): 2, https://doi.org/10.1016/j.marpol.2019.103602. 10 bita parga zen, “the concept of big data analysis for maritime information on indonesian waters using kmeans algorithm,” journal of informatics, information system, software engineering and applications 3, no. 2 (2021): 44, https://doi.org/10.20895/inista.v3i2. the concept of the archipelagic province and archipelagic state … muhammad risnain 76 in addition to these obligations in archipelagic waters, the state must recognize the right of innocent passage and archipelagic waters lane passage for foreign ships. it also recognizes the right of passage of communication and other interests of the nearest neighboring country. 11 according to article 47 paragraph 1 of the 1982 united nations convention on the law of the sea (unclos), archipelagic countries have the right to draw an archipelagic baseline as the basis for measuring their territorial waters from the farthest points of their outermost islands.12 as a consequence of indonesia as an archipelagic country in the 1982 unclos, indonesia has sovereignty over an area of 3.2 million km2 of waters. the waters include 2.9 million km2 of archipelagic waters and 0.3 million km2 of the territorial sea. in addition, indonesia has the exclusive right to exploit marine resources and various interests covering an area of 2.7 km2 in eez waters (up to 200 miles from the baseline).13 to determine the characteristics of an archipelagic state, it can be seen in various laws and regulations that indonesia has issued to strengthen the recognition of indonesia as an archipelagic state. in 1957 prime minister djuanda issued a necessary unilateral declaration to the international community. "all waters around, between, and connecting the islands that are part of the state of indonesia regardless of the extent or width are natural parts of the land area of the state of indonesia and thus part of the interior or national waters under absolute sovereignty. peaceful traffic in these inland waters for foreign ships is guaranteed as long as it does not conflict with/disturb the sovereignty and safety of the state of indonesia. determination of the boundaries of the territorial sea shelf (12 miles wide) is measured from the line connecting the outermost endpoints on the islands of the state of indonesia. the provisions mentioned above will be regulated as soon as possible by law". the declaration gave birth to three characteristics of an archipelagic state: first, geographically, an archipelagic country covers the waters around, between, and connects the islands of the indonesian state. secondly, the waters do not consider the area or width as natural parts of the archipelago, the land area of the indonesian state, and thus part of the interior or national waters; third, the status of state sovereignty over the archipelagic state is under the absolute sovereignty of the indonesian state.14 the djuanda declaration contained a unilateral statement by the indonesian people related to the claim of the indonesian people to the sea area, which was not necessarily accepted as an international legal regime at that time. the 1957 djuanda declaration was later recognized as an international legal regime when in montego bay, jamaica, in 1982, the countries under the united nations signed the 1982 unclos text. the djuanda declaration in the context of international law can be seen in two perspectives; first, the djuanda declaration is a statement by indonesia as a newly independent country to the international community regarding the territorial conception (unilateral action) to secure the interests of defense and security. national security is also the national economic interest. second, djuanda’s declaration is a political statement of the indonesian nation towards the territorial concept, which later became the forerunner of archipelago insight.15 11 atje misbach muhjidin, status hukum perairan kepulauan indonesia dan hak lintas kapal asing (bandung: alumni, 1993). 12 c. f. amerasinghe, “the problem of archipelagoes in the international law of the sea,” international and comparative law quarterly 23, no. 3 (1974): 541, https://www.jstor.org/stable/757887. 13 mochtar kusumaatmadja, konsepsi hukum negara nusantara pada konferensi hukum laut 1982 (bandung: alumni, 2003). 14 m. budiarto, wawasan nusantara dalam peraturan perundang-undangan negara republic indonesia (jakarta: ghalia indonesia, 1980). 15 arief adi purwoko, “the material of wawasan nusantara as indonesian geopolitic note and the implementation in islamic state university,” at-turats: jurnal pemikiran pendidikan islam 14, no. 1 (2020): 86, https://doi.org/10.24260/at-turats.v14i1.1785. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 77 since the declaration announcement on december 13, 1957, the indonesian government has continued to fight for the legal conception of an archipelagic state to be accepted and recognized by the international community. this struggle has finally resulted in universal recognition by the international community, namely the acceptance of the regulation on the principles and legal regime of the archipelagic state in chapter iv of the 1982 united nations convention on the law of the sea. the law number 17 of 1985 concerning ratification of the united nations convention on the law of the sea. the change in the position of the republic of indonesia as an archipelagic country has vast implications not only for national interests but also for international interests in indonesian waters. international recognition of indonesia as an archipelagic state comes with a consequence. indonesia must respect the rights of the international community in the waters that are now national waters, especially the right of peaceful passage and the right of archipelagic waters lane passage for foreign ships. after the international community is convinced that with this action, indonesia does not intend to reduce the rights of the legal shipping world, and a balance is reached between indonesia's desire to secure its territorial integrity and control the natural resources contained therein. however, the world’s interest in international shipping because the international community finally accepted the principle of this archipelagic state. from a constitutional law point of view, the declaration dated december 13, 1957, and government regulation in lieu of law no. 4 of 1960 concerning indonesian waters was a milestone in the development of the indonesian state administration that the international community later recognized the republic of indonesia as an archipelagic state with the inclusion of the principles and legal regime of an archipelagic state in chapter iv of the 1982 united nations convention on the law of the sea.16 as stated in the government regulation in lieu of law number 4 of 1960 concerning indonesian waters, the archipelagic state's principles and legal regime in unclos contain various developments. one of these developments is the recognition of straight archipelagic baselines, the usual baselines, and straight baselines as methods of measuring the indonesian archipelagic baselines. based on this measurement method, there are approximately 17,508 islands in the territorial waters of indonesia. thus, the reasons that prompted the indonesian people to initiate the principle of an archipelagic state and then promulgate it are still relevant today. however, with the development of various interests and activities in indonesian waters, national and international interests in indonesian waters need to be organized, secured, and developed in a directed and wise manner following national development goals. in addition to the interests of defense-security, unity, and economy, environmental protection against the dangers of pollution and its preservation, and the interests of management and utilization in indonesian waters, it is increasingly urgent. based on the considerations above, government regulation in lieu of law no. 4 of 1960 concerning indonesian waters needs to be revoked and replaced with a new law because it is no longer under the development of the archipelagic state's legal regime as contained in chapter iv of the 1982 united nations convention on the law of the sea. as a concept, the archipelago insight is a perspective (observation method) of the indonesian nation based on pancasila and the 1945 constitution of itself and its environment in its all-archipelagic existence and its expansion in expressing itself amid its national environment.17 this concept has become the perspective of the indonesian people towards the geographical, geopolitical, and geostrategic environment and the vision of development. 16 dino patti djalal, the geopolitics of indonesia’s maritime territorial policy (jakarta: csis, 1996). 17 sekretariat pangkolnas, paparan tentang wawasan nusantara (pengakuan perjuangan dan implementasinya) (jakarta: departemen pertahanan dan keamanan ri, 1982). the concept of the archipelagic province and archipelagic state … muhammad risnain 78 historically, the archipelago insight was known when prime minister djuanda issued a declaration on indonesian waters on december 13, 1957. the declaration was later confirmed through government regulation in lieu of law no. 4 of 1960 and stipulated by government regulation in lieu of law no. 4 of 1960. the principal will of the government at that time was to replace the colonial legislation, namely staatsblad 1939-442 concerning the territorial zee en maritime kringen ordonnance (tzmko), which is no longer under developments in international law and the interests of indonesia's national defense, security and economy. the ordinance determines the sea width of the indonesian territory as far as three nautical miles calculated from the baseline. between the islands in the archipelago, there is a high sea. with government regulation in lieu of law no. 4 of 1960 concerning indonesian waters, the calculation of the territorial sea width as far as 12 miles and the status of the waters in and around the islands of the archipelago are subject to the jurisdiction of indonesia. in subsequent developments, the spirit of insight into the archipelago became the government's new spirit in claiming other water areas. in 1973, the government claimed the continental shelf with law no. 1 of 1973 on the continental shelf, and in 1983, the government and the house of representatives issued law no. 5 of 1983 on the exclusive economic zone. at the international forum, the indonesian government continues to struggle to recognize the archipelago's insight. through 1982 unclos, the international community recognized the archipelago concept proposed by indonesia. this concept was accepted as one of the regimes in international law of the sea as an archipelagic state.18 at the policy level of development planning, the concept of archipelago insight has been accepted in development planning through recognition in the decrees of the people's consultative assembly number iv/mpr/1973, the decrees of the people's consultative assembly number iv/mpr/1978, and the decrees of the people's consultative assembly number ii/mpr/1983 concerning outlines of state policy. the amendment to the 1945 constitution of the republic of indonesia supports the archipelagic concept through "wawasan nusantara".19 (archipelago insight) became part of the territorial concept with special arrangements regarding the state's territory in article 25a of the 1945 constitution of the republic of indonesia. boundaries and rights are determined by law. indonesia's recognition as an archipelago state strengthens the archipelago insight as a territorial concept. the problem is implementing the archipelago insight, which is the geographical, geopolitical, and geostrategic concept. the characteristics of an archipelagic state have been implied in the definition of wawasan nusantara. according to the archipelago perspective, the indonesian people's perspective is related to territoriality. according to the concept of wawasan nusantara, indonesia's territory is a unitary unit that includes land water (sea) inseparably. this concept has been accommodated as part of national development with the decree of the people's consultative assembly number ii/mpr/1983. the decree is set as an insight in achieving national development, which includes the realization of the archipelago as a political, economic, socio-cultural, and defense-security unit. thus, it can be concluded that the criteria for an archipelagic state are a country with the characteristics of the union of land and water (ocean). the concept of unification is a geographical unit and a political, economic, socio-cultural, and defense-security unit. this definition can clarify the island's characteristic's definition determined in article 25a of the 1945 constitution of the republic of indonesia.20 18 toto pandoyo, wawasan nusantara dan implementasinya dalam uud 1945 serta pembangunan nasional (jakarta: rineka cipta, 1994). 19 wan usman, “wawasan nusantara,” in lokakarya wasantara dan tannas (lemhannas, 2000). 20 lembaga pertahanan nasional, wawasan nusantara : naskah sementara, lemhanas (jakarta, 2000). lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 79 2. archipelagic province under indonesian law finding the archipelagic state characteristic as one of the special regimes in local government law is essential. an archipelagic province is one of the juridical definitions outlined in the bill of law administering government in the archipelagic region.21 it is vital to give this definition to refer to the regulation giving status to the existing province whether it meets the legal requirements to be said to be an archipelagic province with all the rights attached to it or not.22 after the geographical and non-geographical criteria of an archipelagic state above, the next question is the criteria for an archipelagic state against an archipelagic province. to answer this question, the researcher departs from the background of the birth of these two demands and the legal consequences that arise for the recognition of these two different legal regimes. the establishment of an archipelagic state is an aspiration of archipelagic countries pioneered by indonesia to maintain defense and territorial integrity and strengthen state sovereignty over natural resources at sea.23 the aim is to obtain international legal recognition of an archipelagic state as a new legal regime that is sui-generic in international law. this recognition gives rise to the right for countries with archipelagic characteristics to draw straight archipelagic baselines claiming the territorial sea, archipelagic waters, contiguous zone, exclusive economic zone, and continental shelf.24 the archipelagic state creates legal obligations to recognize the right of peaceful passage.25 in contrast to archipelagic countries, archipelagic provinces are based on the provincial leaders' aspirations regarding the financial balance between the central and regional governments, especially concerning calculating dau and dak allocations.26 based on the background of the archipelagic state regime and province, the researcher opined that the state is not mutatis mutandis to the criteria for an archipelagic province. in other words, the requirements to become an archipelagic state are not the same as the requirements for an archipelagic province. the criteria for an archipelagic province have been determined by the legislation body of the indonesian house of representatives and the cooperation agency of the archipelago province in the academic text of the bill for the acceleration of archipelagic regional development. in the academic paper, the criteria for the archipelago province consist of the following criteria: a) the area of the sea is larger than the land area; b) in terms of demographic distribution, the population of the archipelagic region is usually relatively small, and the distribution is uneven; c) from a socio-cultural perspective, communities in the archipelago are segregated in settlements according to the territory of an island, so it implies a strong sense of attachment to the land, the lifestyle on small islands is harmonized with nature (slow to accept changes); 21 rdh koesoemahatmadja, pengantar ke arah sistem pemerintahan daerah (bandung: binacipta, 1979). 22 irawan soejito, hubungan pemerintah pusat dan pemerintah daerah (jakarta: rineka cipta, 1990). 23 robert endi jaweng, “kritik terhadap desentralisasi asimetris di indonesia,” jurnal analisis csis 40, no. 2 (2011): 162, https://www.kppod.org/article/view?id=2. 24 harry purwanto and dewa gede sudika mangku, “legal instruments of the republic of indonesia in border management using the perspective of archipelagic state,” international journal of business, economics and law 11, no. 4 (2016): 55, https://www.ijbel.com/wp-content/uploads/2017/01/law-112.pdf. 25 siti merida hutagalung, “penetapan alur laut kepulauan indonesia (alki): manfaatnya dan ancaman bagi keamanan pelayaran di wilayah perairan indonesia,” jurnal asia pasific studies 1, no. 1 (2017): 80, https://doi.org/10.33541/japs.v1i1.502. 26 muh. risnain, “rezim provinsi kepulauan dalam perspektif negara kesatuan republik indonesia, wawasan nusantara, dan otonomi daerah,” unizar law review 3, no. 1 (2020): 103, https://ejournal.unizar.ac.id/index.php/ulr/article/view/247. the concept of the archipelagic province and archipelagic state … muhammad risnain 80 d) in terms of the availability of natural resources, it is relatively diverse; e) in terms of living systems, it is determined by the level of geographical isolation with unique habitat (endemic) and biotic diversity (biodiversity); f) from a socio-economic point of view, economic activities, types, and degrees of economic dynamics are generally limited and small in scale and have not been adequately supported by distribution and marketing networks; g) in terms of environment, environmental resources are small, susceptible to change (entropy), prone to natural disasters (waves on the sea surface, dominated by gravitational waves caused by wind; ocean currents are caused by two factors, namely monsoons and tides); h) from a biogeographical perspective, there is potential for terrestrial and aquatic biodiversity around (small) islands; i) almost all of the archipelago provinces are located in the territory/region of the state border, which has a small outermost island. based on presidential regulation number 78 of 2005, the small outermost islands in the archipelago province are as follow: riau islands province has 20 islands, maluku province has 18 islands, north sulawesi province has 12 islands, east nusa tenggara province has five islands, west nusa tenggara province has one island, and north maluku province has one island. law number 23 of 2014 concerning regional government's elucidation has determined the characteristics of archipelagic provinces. in the elucidation of the law, it is defined that a province with archipelagic characteristics is a province area with geographical characteristics.27 moreover, it is also an ocean area more comprehensive than the land in which some islands form a group of islands to become a geographical and socio-cultural unit. if it is further detailed, the character of an archipelagic province in this law is based on geographical characteristics. the character shows where the ocean area is wider than the land in which some islands form a group of islands.28 it becomes a geographical unit and cultural characteristic where the archipelagic province has socio-cultural ties.29 based on the above considerations, the researcher believes that the archipelagic province criteria are not fully applied to determine the archipelagic province criteria. the criteria for an archipelagic state as a country consist of one or more islands. it may include other islands, where an archipelago is a group of islands, including parts of islands and the waters between these islands other natural forms that are related to each other. others are so closely related that the islands, waters, and other natural features form an intrinsic geographical, economic, defense, and security, and political unit or are historically regarded as such. this criterion can only be applied to state entities given the attribute of sovereignty and jurisdiction over the territory by international law. meanwhile, in the archipelagic province, the priority criteria are geographical criteria. these criteria are based on the geographical specificity of the existing provinces. the researcher stated that the archipelagic provinces should not be based on essential economic, defense, security, and political factors or have historically been regarded as such as attri buted to an archipelagic state. in addition, these criteria are specific to the state but can also threaten the republic of indonesia's unity because of its attributes. such a country raises concerns 27 fauzi janu amarrohman et al., “analisis keberadaan kepulauan seribu terhadap batas pengelolaan laut provinsi dki jakarta,” elipsoida 3, no. 1 (2020): 88. 28 e. djunarsjah and a. p. putra, “the concept of an archipelagic province in indonesia,” iop conference series: earth and environmental science 777 (2020): 1–2, https://doi.org/10.1088/1755-1315/777/1/012040. 29 cornelis lay, “desentralisasi asimetris bagi indonesia,” in menata ulang desentralisasi dari perspektif daerah (yogyakarta: program pascasarjana program studi ilmu politik fisipol ugm-usaid and drsp, 2010), 1–2. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 81 about the demand to become an economically, politically, security, and defenseless province from the unitary republic of indonesia. it is essential to mention that the aspirations of archipelagic provinces are based on the demand for special treatment from provinces. this particular treatment is in central and regional financial balance, which is based on calculating dau and dak by taking into account the area of the sea, nothing more than that. thus, according to the researcher, the geographical and cultural criteria in law number 23 of 2014 above align with the basic concept of determining the archipelago province from the proposed provinces. c. conclusion the international and national laws stated that the archipelagic state criteria could not be applied to mutatis mutandis. the archipelagic state as a geographical unit of economic, defense, and security and essential politics of which have historically been regarded as such and the 1982 unclos and national legislation, cannot be applied in determining the criteria for an archipelagic province. the elucidation of law number 23 of 2014 explicitly states that the characteristics of an archipelagic province based on geographical and cultural conditions are a moderate concept for determining the characteristics of an archipelagic province. references amarrohman, fauzi janu, moehammad awaluddin, bambang darmo yuwono, and aisyah arifin. “analisis keberadaan kepulauan seribu terhadap batas pengelolaan laut provinsi dki jakarta.” elipsoida 3, no. 1 (2020): 88. amerasinghe, c. f. “the problem of archipelagoes in the international law of the sea.” international and comparative law quarterly 23, no. 3 (1974): 541. 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muhammad risnain 84 1 implementation of the responsibility to protect in the settlement of humanitarian crisis in the central african republic by the united nations parulian yusuf s junior associate robintan sulaiman & partners (rsp) law firm, indonesia email: lian.deutschland@gmail.com submitted: january 2, 2019; reviewed: january 30, 2019; accepted: february 4, 2019 article info abstract keywords: responsibility, crisis, humanity, un doi: 10.25041/lajil.v1i1.2019 state’s sovereignty enables the execution of governance arrangements and state’s (primary) obligation to protect citizens from the threats of genocide, crimes against humanity, war crimes and aggression. moreover, sovereignty is considered as a state-owned right to reject forms of interventions. the opposition that arises between sovereignty and the protection of humanity encourages the birth of responsibility to protect. the humanitarian crisis occurred in the central african republic when the central african republic government was unable to stop the insurgency arising in its territory. seleka and anti-balaka rebels were involved in the civil war in the central african republic. seleka rebels attacked a predominantly christian and anti-balaka population attacking a muslim minority. this is of concern to the international community and encourages the united nations security council to take action to resolve the humanitarian crisis in the central african republic under responsibility to protect. a. introduction responsibility to protect is a new concept in international law that encourages each country to perform its obligations to protect civilians residing in its territory. responsibility to protect is based on 3 (three) main pillars, namely (1) the responsibility of the state to protect its people from mass destruction, war crimes, ethnic cleansing and crimes against humanity; (2) the responsibility of the international community to assist countries in carrying out their duties; and (3) the responsibility of each member state of the united nations to respond collectively, on time and decisively.1 however, the implementation of responsibility to protect especially the second and third pillars still creates a conflict between the principle of state sovereignty and humanitarian intervention. in principle, sovereignty is absolute, indivisible and immutable. in addition, sovereignty consists of rights and obligations of a state. through this sovereignty, the state can exercise power within the territory and citizens. in addition to the exercise of such powers, the state must protect its citizens from the threat of crimes of genocide, war crimes, crimes against humanity and ethnic cleansing against certain racial, religious, political and classical backgrounds.2 the central african republic is a country that is geographically located on the african continent. 1 implementing the responsibility to protect report of the secretary general un doc a/63/677/2009. 2 rahayu, “eksistensi prinsip responsibility to protect dalam hukum internasional”, mmh 41, no. 1 (2012): 128-136, 129, doi: 10.14710/mmh.41.1.2012.128-136 volume 1 issue 1, 2019: pp. 1-10. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 2656-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:lian.deutschland@gmail.com https://doi.org/10.25041/lajil.v1i1.2019 https://doi.org/10.14710/mmh.41.1.2012.128-136 implementation of the responsibility to protect in the settlement of humanitarian.... parulian yusuf s 2 the country is experiencing poverty and political instability after gaining independence from france.3 the appointment of the president was done through a military coup and a revolt. in 2013, seleka’s group, which is a combination of several rebel groups from the east and the north central african republic, including the convention of patriots for justice and peace (cpjp), the union of democratic forces for unity (udfr), the democratic front of central african people fdpc), the patriotic convention for the salvation of kodro (cpsk) and the alliance for renaissance and reorganization (a2r), an islamic minority group headed by michel djotodia held a rebellion to overthrow the francois bozize regime.4 seleka rebels succeeded in mastering the strategic cities, government and state capitals, bangui. president bozize fled, and seleka leader michel djotodia announced that he was president of the central african republic and dissolved seleka to reunite the people of central african republic.5 the dissolution of seleka by president djotodia was rejected by members of selaka. the refusal prompted the village’s anti-balaka security forces to fight against the rest of seleka rebels. anti-balaka considers that when the seleka rebels committed a coup, they also massacred thousands of christians and burned down the homes of the cypress. this has led to widespread and widespread conflict, from political conflicts between opposition and government to christian-muslim conflict. the government of the central african republic is the highest authority in the administration of the state that should be able to play an important role in ensuring the protection of its citizens. however, political and security instability in the central african republic is a major problem in the prevention of humanitarian crises. this encourages rebel groups that no longer target government but civilians with a particular religious background. the inability of the government of the central african republic to protect its citizens as well as from seleka and anti-balaka groups became an indicator that the central african republic failed to implement responsibility to protect. this prompted the international community to assist the central african republic to carry out its obligations. according to the report of the secretary-general, the civil war of the central african republic was categorized as a war crime, ethnic cleansing, mass extermination and crimes against humanity that we’re unable to be resolved by the then ruling government.6 the conflict continues to this day and threatens the existence of the central african republic to split into a christian state and an islamic state. the international community7 can act through the united nations security council. the security council issued a number of resolutions to stop the humanitarian crisis in the central african republic. what is the legal position of responsibility to protect in international law? how is the implementation of responsibility to protect in settlement of the humanitarian crisis in the central african republic by the united nations? b. discussion 1. legal position of responsibility to protect in international law a. responsibility to protect in international customary law human rights are a natural right. it is applied universally and inherits directly towards humanity.8 efforts to respect and protect human rights are the obligation and responsibility of the community, government and state.9 efforts to uphold human rights and protect humanity from the threat of genocide, crimes against humanity and war are part of running a business to maintain world peace and security. in practice, some countries do not agree because it threatens the sovereignty of the state. however, the international court of justice in the case of military and paramilitary activities in and against nicaragua states: “in international law, there are no rules, other than such rules as may be accepted by the state 3 dean stahl, karen kerchelich, abbreviations dictionary (new york, washington d.c: crc press, 2001), 1435. 4 ibid. 5 annette weber and markus kaim, “central african republic in crisis. african union mission needs united nations support,” swp comments, (2014): 1-7, 2. 6 united nations general secretary report no. a/67/920-s/2013/399. 7 article 2 (7), united nations charter. 8 virgayani fattah, “hak asasi manusia sebagai jus cogens dan kaitannya dengan hak atas pendidikan,” yuridika 32, no. 2 (2017): 355-378, 356, doi: 10.20473/ydk.v32i2.4775.fattah. 9 felishella earlene and jesslyn evelina tandrajaya, “sengketa penguasaan tanah antara warga kapuk poglar rt 07 / rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia,” cepalo 3, no. 2 (2019): 55–62, 57, doi: 10.25041/cepalo.v3no2.1844. https://doi.org/10.25041/cepalo.v3no2.1844 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 3 concerned, by treaty or otherwise, whereby the level of armaments of a sovereign state can be limited, and this principle is valid for all states without exceptions.” the international court of justice understands opinions as an element of customary international law.10 therefore, international customary law has 2 (two) components which are always the benchmarks of the implementation of customary international law which is the practice by the state and opini iuris siven ecessitatis (opino iuris).11 the existence of responsibility to protect in customary international law can be seen from 2 (two) aspects: 1) states must protect each other from international criminal practice. if the state has the responsibility of protecting its citizens and failing to implement it, the international community is obliged to provide legal sanctions. 2) states have the legality to act under customary international law when the united nations security council agrees to intervene in humanity. example: resolutions 1970 and 1973 on the implementation of responsibility to protect in libya. in addition, customary international law has the peculiarity of allowing humanitarian intervention without waiting for the resolution of the united nations. for example, intervention conducted by the north atlantic treaty organization (nato) to kosovo in 1999 received international condemnation. the nato action led by the united states and its allies has no basis for humanitarian intervention in kosovo. such action is also contrary to the principles contained in the charter of the united nations. however, such violations, on the other hand, encourage the transformation of the law regarding the commitment to upholding humanitarian protection as contained in the charter of the united nations on human rights. ius cogens is based on the acceptance of fundamental values that are in common with the concept of public order in national law so that an international agreement can be void if contrary to ius cogens. therefore, ius cogens is recognized as a norm that should not be violated.12 ius cogens which is universally applicable as a result of pacta sunt servanda law of articles 53 and 64 of the vienna convention 1969. according to verdross, there are 3 (three) rules that can be ius cogens: (1) basic rules arising from the common interest in the international community, (2) the emergence of humanitarian goals, (3) in harmony with the charter of the united nations.13 ius cogens can be born out of customary international law aimed at protecting the interests of the international community.14 ulrich scheuner divides ius cogens into three groups:15 1) the first group: on the basis of consideration of the highest interest of the state to protect the foundations of law, peace and humanity as a minimum standard of international law. examples: prohibition of genocide, slavery, use of illegal or arbitrary violence. 2) the second group consists of principles and rules of law that are essential for maintaining peace cooperation which in international law aims to protect the public interest. example: the use of tools by pirates. 3) the third group includes the imperative norm to protect humanity, especially the most essential human rights. they encourage full protection of humanity. as a peremptory norm, ius cogens provides the legal force to the principles of customary international law such as banning crimes against humanity, war crimes, genocide, slavery and torture. this is in accordance with the responsibility to protect object that prevents genocide, crimes against humanity, war crimes and ethnic cleansing. based on the above, the responsibility to protect is an emerging part of customary international law. however, according to the authors, responsibility to protect’s existence must be strengthened through international agreements. in comparison, the concept of insight of the archipelago (archipelagic country) which is the doctrine of mochtar kusumaatmadja has a stronger legal standing through the united nations 10 http://law.cornell.edu/wex/opinio_juris_internationaal_law, accessed on january 12, 2017. 11 jeffrey l. dunoff, steven r. ratner, david wippman, international law: norms, actors, process: a problem oriented approach (canada: wolters kluwer, 2010), 77-79. 12 article 53 of vienna convention 1969 on the law of treaties. 13 mochtar kusumaatmadja, hukum laut internasional. (bina cipta: jakarta, 1986), 176. 14 ibid. 15 ulrich scheuner, “conflict of treaty provisions with a peremptory norm of general international law and its consequences: comments on arts. 50, 61 and 67 of the ilc‟s 1966 draft articles on the law treaties”, ilc's draft articles on the law of treaties – comments, (1967): 520-532, 525-526. http://law.cornell.edu/wex/opinio_juris_internationaal_law https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22jeffrey+l.+dunoff%22 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22steven+r.+ratner%22 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22david+wippman%22 implementation of the responsibility to protect in the settlement of humanitarian.... parulian yusuf s 4 convention on the law of the sea 1982.16 b. responsibility to protect in international convention international conventions are placed as the highest law instruments for the state to enter into international cooperation. its nature is written so as to facilitate in the proof. international conventions contain general legal principles such as ius cogens, pacta sunt servanda, good faith, and the principles of free consent.17 the initial concept of responsibility to protect can be seen in the marten clause contained in the preamble of the hague convention 1899. the marten clause codified the law of humanity and the necessity for the public conscience:18 “until a complete code of the laws of war has been issued, the high contracting parties think it right to declare that, in cases not included in the regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations from the laws of humanity, and the requirements of the public conscience.” marten clause has shaped the direction of international human rights law and international humanitarian customs. inside the marten clause establish the duty and responsibility of the state. the charter of the united nations is the legal basis for the security council to fulfil its obligations in relation to threats to international security or breaches of peace and security and aggression in accordance with the purposes and principles of the united nations.19 the security council is permitted to use armed forces to ensure the stability of international peace and security.20] however, there is no single international agreement that explicitly writes responsibility to protect. it is because responsibility to protect is new and seeks recognition and position in international law. responsibility to protect can be found in several documents such as the international commission on intervention and state sovereignty (iciss) report; the highlevel panel report on threat, challenges and change; world summit final act/outcome document; kofi annan’s report as secretary-general of the united nations: in larger freedom: towards development, security, and human rights for all. these documents can‟t be categorized as sources of international law because they do not meet the formal and material elements of international legal sources.21 responsibility to protect has no position in international treaties. however, states subject to international treaties of human rights have an obligation to implement the contents of the agreement under the principle of pacta sunt servanda.22 these international agreements include: 1) the convention on the prevention of the crime of genocide 1948; 2) international on civil and political rights; 3) international covenant on economic, social, and cultural right; 4) convention against torture and other cruel inhuman or degrading treatment or punishment; 5) international convention on the elimination of all forms of racial discrimination; 6) convention on the elimination of all forms discrimination women; 7) rome statute 1998; 8) geneva convention, 1949. countries still have a responsibility to protect citizens from threats of genocide, crimes against humanity, war crimes and ethnic cleansing as a form of good faith in the implementation of international treaties. c. responsibility to protect in the general principles of law recognized by civilized nations the principles of common law recognized by civilized nations were first recognized in the 16 united nations convention on the law of the sea 1982. 17 vienna convention 1969 on the law of treaties. 18 convention with respect the laws and customs of war on land (hague ii) 1899. 19 article 26 united nations charter. 20 article 42 united nations charter. 21 martin dixon, textbook on international law. fifth edition (oxford: oxford university press, 2004), 23-24. 22 abdul muthalib tahar, hukum internasional dan perkembangannya (lampung: fakultas hukum universitas lampung, 2015), 12. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 5 permanent court of international justice (pcij) statute to avoid the problem of non-liquets23 in a case confronted by a judge. the judge can not refuse a case by reason of no law. if a judge does not find a relevant treaty with the case then international customs can be used against the case and judges may use general legal principles to strengthen judge’s judgment.24 the existence of the principle of common law recognized by civilized nations is contained in article 38 of the statute of the international court of justice (icj). some common law principles include pacta sunt servanda, good faith, par im non imperial habet, lex specialis, lex priori, lex superiori and nebis in idem.25 responsibility to protect is a new concept in the protection of human rights, especially the implementation of obligations arising from the sovereignty of the state against its citizens. the legal position of responsibility to protect is essential since it is implemented by the international community. the author analyzes the position of responsibility to protect in the principles of common law recognized by civilized nations by comparison with other doctrines which have become common law principles such as arvid pardro’s doctrine of the common heritage of humanity in the deep-sea zones and deep ocean seabed.26 in 1967, arvid pardro formulated the common heritage of humanity in an article known as maltese’s proposal. in the proposal, it is explained that the deep-sea zones and deep ocean seabed are the common heritage of humanity. some countries oppose the concept of the common heritage of humanity on the grounds of state sovereignty over the sea and resources will be degraded, the absence of the applicable legal regime, and the effectiveness of this doctrine against the privatization of natural resources.27 the important development of the common heritage of humanity occurs in the 1970 united nations general assembly declaration on the seabed, seas and submarine lands beyond the jurisdiction of the state. this declaration establishes the common heritage of humanity as the legal basis in the setting of the seabed. the common heritage of humanity’s doctrine gained its position as general legal principles by civilized nations through the 1982 law of marine law conventions known as the united nations on the law of the sea 1982.28 the concept of responsibility to protect has similarities with the common heritage of humanity as an expert opinion. however, to change the legal position of doctrine into a general legal principle recognized by civilized nations requires a long process. the key to this process is that the doctrine is adopted in an international agreement under the united nations. the common heritage of humanity principle derives from the united nations on the law of the sea 1982. the author argues that responsibility to protect can‟t be regarded as a general legal principle recognized by civilized nations. this is based on the absence of an international convention under the united nations, adopting the responsibility to protect concept. therefore, the authors conclude the position of responsibility to protect in international law as a doctrine or opinion of experts. d. responsibility to protect as international doctrine the doctrine or opinion of international jurists is the source of the subsidiary law of primary law sources (international customs, international covenants and general legal principles recognized by the civilized nations). the doctrine could not stand alone as the basis of the verdict, because it merely reinforces the source of the primary law.29 the doctrine or opinion of jurists can be used to explain the rules of international law and facilitate the establishment of international law.30 examples of expert opinions that have been used include the committee of jurists appointed by the league of nations council of 1920 to provide disputed opinions on aaland island.31 currently, the implementation of responsibility to protect can only be done by the united nations 23 alfredo mordechai rabello, “non liquet: from modern law to roman law”, annual survey of international and comparative law 10, no. 2 (2004): 1-26, 11-12. 24 sefriani. hukum internasional suatu pengantar (jakarta: raja grafindo persada, 2012), 49. 25 wahyu sasongko, dasar-dasar ilmu hukum (lampung: universitas lampung, 2013), 29. 26 http://wealthofhtecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries, accessed on march 23, 2017. 27 ibid. 28 ibid. 29 serfiani, op.cit., 50. 30 abdul muthalib tahar, op.cit., 44. 31 ibid. http://wealthofhtecommons.org/essay/common-heritage-mankind-bold-doctrine-keptimplementation of the responsibility to protect in the settlement of humanitarian.... parulian yusuf s 6 security council through the relevant resolutions. the position of responsibility to protect as an additional legal source will strengthen the international agreement on which the security council considers to produce a conflict-related resolution that threatens international peace and security. subsequently, the security council assigns the secretary-general the task of overseeing and reporting the implementation of responsibility to protect. the security council has implemented responsibility to protect in several conflicts as in libya (2011), côte d’ivoire (2011), south sudan (2011), yemen (2011), syria (2012), burundi (2015), democratic republic of congo (2017), and central african republic (2013-2018).32 based on the above analysis, the authors argue that the position of responsibility to protect as the doctrine of international law. the existence of responsibility to protect in international law reinforces the legal force of the security council to take the necessary measures to safeguard international peace and security. 2. implementation of responsibility to protect in the center african republic by united nations genocide crimes, ethnic cleansing, war crimes and crimes against humanity are a threat to international peace and security. this is based on security council resolution no. 827, violations of extraneous international humanitarian law and ethnic cleansing practices in bosnia and herzegovina pose a threat to international peace and security. resolution 955, the security council established that genocide and violations of international humanitarian law systematically and pervasively pose a threat to international peace and security. humanitarian intervention is one form of international community involvement to protect human rights within a country facing humanitarian crises such as crimes of genocide, crimes against humanity, war crimes and ethnic cleansing. the act of such intervention is subject to the provisions of the charter of the united nations. this means that the security council may determine a situation occurring in a country to constitute a threat to international peace and security and may take action under article 41, namely: “the security council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the united nations to apply such measures. these may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and this variance of diplomatic relations.” the actions of non-military intervention are the first step to stop the situation threatening international peace and security. if such non-military intervention fails, the united nations may take action under article 42 of the charter of the united nations or article 42, namely: “should the security council consider that measures provided for in article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. such action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the united nations.” under paragraph 139, the final act world summit 2005, the international community must take collective action through the united nations security council, if the national authorities have failed to protect populations within its territory from crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. chapter vii, the charter of the united nations, authorizes the security council to take collective action under certain circumstances. article 39 of the charter provides that: “the security council shall determine the existence of any threat to the peace breach of the peace, or act of aggression and shall make a recommendation, or decide what measures shall be taken in accordance with articles 42 and 42, to maintain or restore international peace and security.” thus, the crimes of genocide, war crimes, ethnic cleansing and crimes against humanity constitute a threat to international security and peace and have legal consequences under chapter vii of the charter of the united nations. 32 http://www.globalr2p.org/publications/652, accessed on may 12, 2017. http://www.globalr2p.org/publications/652, lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 7 measures to be adopted to implement the responsibility to protect by the united nations security council include: (supervisor) chart 1.1. the process of implementing the responsibility to protect by the united nations a. report to the security council the president of the security council may convene a meeting if at the request of a security council member,33 a dispute or situation of security council attention,34 the general assembly makes recommendations and poses a question to the security council35 and the secretary-general brings problems that endanger international peace and security.36 the humanitarian crisis in the central african republic received attention from the secretarygeneral. through the report number s/2011/241, the secretary-general reports to the security council on children and armed conflict occurring in the central african republic. this report is the first report of the secretary-general to the security council. the secretary-general must report to the security council the implementation of such resolution. the reports are made continuously after the security council provides other resolutions related to the humanitarian crisis in the central african republic. b. investigation of prima facie genocide special advisors on genocide prevention and mass cruelty and special advisor responsibility to protect can undertake a fact-finding mission and make recommendations to the security council through the secretary-general.37 the two special advisors are established by the secretary-general and cooperate with international agencies both within the united nations and outside such as fao, undp, unesco, unfpa, unicef, unhcr and human rights watch to confirm the genocide. investigation of the humanitarian crisis in the central african republic was implemented by the united nations peace building support office in the central african union (binuca). binuca conducts investigations to confirm genocide in the central african republic through several fields including politics, socio-economic, human rights, humanitarian, child protection and gender.38 33 article 2 provisional rules of procedures security council (s/96/rev.7). 34 article 35 united nations charter 35 article 11 (2) united nations charter 36 article 99 united nations charter 37 note the secretary-general‟s comment that the advisers are to work in collaboration: letter dated 31 august 2007 from the secretary-general addressed to the president of the security council un doc s/2007/721 38 united nations general secretary report no. s/2011/311 (report) special advisors for the responsibility to protect general special advisor for genocide and mass cruelty prevention united nations peacebuilding support office in the central african union (binuca) the security council‟s trial security council general genocide investigation in the republic of central africa president of the security council the implementation of the responsibility to protect in the republic of central africa through the security council‟s resolutions implementation of the responsibility to protect in the settlement of humanitarian.... parulian yusuf s 8 the results of the investigation suggest there has been a massive genocide committed against civilians with a particular religion. the secretary-general reports to the security council to take the necessary measures by issuing resolutions to implement responsibility to protect. c. the humanitarian crisis in the central african republic is an international crime the central african republic is one of the poorest countries in the world.39 the political, security, health and economic crises have been an unfinished problem since gaining independence from france in 1960. the instability caused turmoil in society that eventually led to a coup against a legitimate government. this became a dilemma. coup d’etat was not done by small groups but also by the military that was supposed to provide security guarantees. seleka rebels who carried out a coup against president bozize controlled several towns before finally succeeding in bringing down bozize and taking over the government through president djotodia. however, during the tenure process, seleka, which is an affiliation of several combatant groups, committed international crimes by killing civilians who were christians. anti-balaka which originally was the village security forces did not participate in the battle. seleka’s actions targeting civilians caused social upheaval, which caused anti-balaka to turn into a militia group against seleka’s group. however, anti-balaka targets were not just seleka’s group but also muslim civilians. this changed the direction of combat in the central african republic. originally a political background became a religious background. seleka and anti balaka groups committed international crimes as set out in the rome statute 1998. each of them committed mass killings and was widespread against one group with a religious background. the government of the central african republic is unable to exercise sovereignty as a form of responsibility to protect its citizens from crimes of genocide, war crimes, crimes against humanity and ethnic cleansing. therefore, the international community moves to end the humanitarian crisis and create stability in the central african republic d. implementation of responsibility to protect through security council resolution the security council requested the secretary-general to report and update the situation report in the central african republic.40 the report forms the basis for the security council implementing responsibility to protect through resolutions against the central african republic. the united nations security council has issued 18 resolutions related to the humanitarian crisis in the central african republic. however, only 11 resolutions containing responsibility to protect, these are resolution 2121; resolution 2127; resolution 2134; resolution 2149; resolution 2196. resolution 2217; resolution 2262; resolution 2301; resolution 2339; resolution 2387; resolution 2399. resolutions containing responsibility to protect have several indications, among others (1) the existence of the phrase “the primary responsibility to protect the civilian population”; “the transnational authorities have the primary responsibility for protecting the population.”; “the transnational authorities have the primary responsibility to protect the civilian population” central african republic “; “in these resolutions there are elements responsibility to protect that is responsibility to prevent through the development of state institutions, responsibility to react through sanctions arms embargo, travel ban and asset freeze and responsibility to rebuild through disarmament, demobilization, reintegration and repatriation program. c. conclusion responsibility to protect is the doctrine of international law because the doctrine of responsibility to protect is used to analyze cases by mapping and interpreting, systematizing the law under abstract general principles of law, and developing moral philosophy and philosophy of justice. in addition, the responsibility to protect to strengthen the security council resolution to intervene in the domestic affairs of a country related to the conflict that threatens international peace and security. the united nations security council has issued 18 resolutions related to the humanitarian crisis in the central african republic. however, only 11 (eleven) resolutions use responsibility to protect. the responsibility to protect responsibility to prevent is through responsibility to prevent development 39 https://www.heritage.org/index/pdf/2018/countries/centralafricanrepublic.pdf, accessed on june 12, 2017. 40 united nations general secretary report no. s/2013.261. http://www.heritage.org/index/pdf/2018/countries/centralafricanrepublic.pdf lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 1, 2019 e-issn: 2723-2603 9 through state institutional development, responsibility to react through sanction of arms embargo, travel ban and asset freeze and responsibility to rebuild through disarmament, demobilization, reintegration and repatriation program. references a. journal annette weber and markus kaim, “central african republic in crisis. african union mission needs united nations support,” swp comments, 2014: 1-7. earlene, felishella., tandrajaya, jesslyn evelina. “sengketa penguasaan tanah antara warga kapuk poglar rt 07 / rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia,” cepalo 3, no. 2, 2019: 55–62, doi: 10.25041/cepalo.v3no2.1844. fattah, virgayani. “hak asasi manusia sebagai jus cogens dan kaitannya dengan hak atas pendidikan,” yuridika 32, no. 2, 2017: 355-378, doi: 10.20473/ydk.v32i2.4775. rabello, alfredo mordechai. “non liquet: from modern law to roman law”. annual survey of international and comparative law 10, no. 2, 2004. rahayu. “eksistensi prinsip responsibility to protect dalam hukum internasional”, masalah-masalah hukum 41, no. 1, 2012: 128-136. doi: 10.14710/mmh.41.1.2012.128-136 scheuner, ulrich. “conflict of treaty provisions with a peremptory norm of general international law and its consequences: comments on arts. 50, 61 and 67 of the ilc‟s 1966 draft articles on the law treaties”, ilc's draft articles on the law of treaties – comments, 1967: 520-532. b. book dean stahl and karen kerchelich. abbreviations dictionary. new york, washington d. c.: crc press, 2001. dixon, martin. textbook on international law. oxford: oxford university press. fifth edition, 2004. dunoff, jeffrey l. steven r. ratner., wippman, david. wippman, international law: norms, actors, process: a problem oriented approach. canada: wolters kluwer, 2010. kusumaatmadja, mochtar. hukum laut internasional. bina cipta: jakarta, 1986. sasongko, wahyu. dasar-dasar ilmu hukum. lampung: universitas lampung, 2013. sefriani. hukum internasional suatu pengantar. jakarta: rajagrafindo persada, 2012. tahar, abdul muthalib. hukum internasional dan perkembangannya. lampung: fakultas hukum universitas lampung, 2015. c. regulation implementing the responsibility to protect report of the secretary general un doc a/63/677/2009. note to the secretary-general‟s comment that the advisers are to work in collaboration: letter dated 31 august 2007 from the secretary-general addressed to the president of the security council un doc s/2007/721. united nations charter. united nations convention on the law of the sea 1982. united nations general secretary report number a/67/920s/2013/399. united nations general secretary report number s/2011/311 united nations general secretary report number s/2013.261 provisional rules of procedures security council (s/96/rev.7) vienna convention 1969 on the law of treaties. d. internet http://law.cornell.edu/wex/opinio_juris_internationaal_law, accessed on january 12, 2017. http://wealthofhtecommons.org/essay/common-heritage-mankindbold-doctrine-kept-within-strictboundaries, accessed on march 23, 2017. http://www.globalr2p.org/publications/652, accessed on may 12, 2017. https://www.heritage.org/index/pdf/2018/countries/centralafricanrepublic.pdf, accessed on june 12, 2017. https://doi.org/10.25041/cepalo.v3no2.1844 https://doi.org/10.14710/mmh.41.1.2012.128-136 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22jeffrey+l.+dunoff%22 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22steven+r.+ratner%22 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22david+wippman%22 http://law.cornell.edu/wex/opinio_juris_internationaal_law http://wealthofhtecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries http://wealthofhtecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries http://wealthofhtecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict-boundaries http://www.globalr2p.org/publications/652 https://www.heritage.org/index/pdf/2018/countries/centralafricanrepublic.pdf https://www.heritage.org/index/pdf/2018/countries/centralafricanrepublic.pdf implementation of the responsibility to protect in the settlement of humanitarian.... parulian yusuf s 10 19 maritime security regulation concerning international ship and port facility security code 2002 and its implementation in indonesia ayu kusuma wardani universitas lampung, indonesia, email: kusumawardaniayu10@gmail.com submitted: november 11, 2020; reviewed: december 21, 2020; accepted: january 8, 2021 article info abstract keywords: isps code 2002, ship security, port facilities doi: 10.25041/lajil.v3i1.1985 ministerial regulation number 134 of 2016 is a form of ratification of the international ship and port facility security code 2002 (isps code, 2002), the objective of which is to establish a consistent standard framework for evaluating risk and enabling the government to compensate for changes in threats through measures appropriate safety measures. in its development, there are several regulations related to implementing the 2002 isps code in indonesia. these regulations were formed by adjusting the standard regulations in the 2002 isps code with the safety conditions of ships and ports in indonesia. the problem is, indonesia has several large ports that operate as international ports in international trade. the type of research used is normative legal research sourced from primary, secondary, and tertiary legal materials whose data collection is carried out by literature study. the results of the study show two things: (1) maritime security arrangements relating to shipping safety standards and port facilities in the 2002 isps code are divided into two parts, namely part a (part a) containing systematic arrangements and implementation of the isps code for signatory countries including and definition, purpose, scope of ship safety standards and port facilities and isps code compliance procedure. and part b (part b) contains further explanation about part a including determination of security level, implementation of ship security, implementation of port facility, and information and communication security. (2) the implementation of the maritime security regulation related to security standards ships and port facilities in the isps code in 2002 in indonesia contained in via law no. 17 the year 2008 on the voyage, ministerial regulation number 134 the year 2016 concerning management of ship safety and port facilities. a. introduction volume 3 issue 1, 2021: pp. 19-28. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:kusumawardaniayu10@gmail.com maritime security regulation concerning international ship … ayu kusumawardani 20 the port is one of the important infrastructures in sea transportation. the port represents one as the means of carrying out transportation to and or from the interior, which connects various sea transportation facilities.1 the port serves as a gateway to the economy, a center for the accumulation of goods from production to be transported to their destination, and as a distribution center for market goods.2with such an important function, it is only natural that matters relating to ports receive special attention. one of the important aspects of the port is the issue of security. this security issue is becoming increasingly important given the increasingly vital role of ports in the continuity of shipping and international trade. security is one of the important factors in port activities, so threats to ship and port security must be immediately anticipated.3 the first development in maritime security was marked by the agreement of an international convention known as the united nations convention on safety of life at sea (solas) 1974. solas is the first international convention regulating maritime safety on ships and setting minimum construction standards, equipment, and operations for a ship. since being adopted by various countries in 1974, solas has undergone several reforms. since the adoption of solas in 1974, port security regulations have not undergone significant reforms. shipping security and port facilities have become more vulnerable due to issues of international terrorism. a joint international instrument called the international ships, and port facility security code (isps code) was agreed in an amendment to solas in 2002.4 the formation of the international ship and port facility security code 2002 (isps code 2002) was motivated by the attack on the world trade center (wtc) building in the united states on september 11, 2001. the attack on the tanker ship 'limburg' belonged to france and claimed a shipping attack by a group of terrorists in 2002. the attack has awakened the international community to the importance of a security standard for air and sea transportation facilities, including the security standard for port facilities, especially for ports used on international shipping routes.5 indonesia, as an archipelago, has a sea area of 5.1 km²6 and several islands consisting of 17,510 islands. this has resulted in the role of sea transportation, becoming an increasingly dominant means of transportation. the abundant and uneven distribution of natural resources has made the function of sea transportation essential.7indonesia has no less than 560 large and small ports scattered throughout the archipelago, 110 of which are relatively large commercial ports and are managed by four pt. (persero) pelabuhan indonesia.8 this interest then becomes one of the reasons why the indonesian government must apply international standards to ships and port facilities throughout indonesia's maritime territory, for this reason. the government has ratified the isps code 2002 through ministerial regulation number 134 of 2016 concerning ship security standards and port facilities (international ships and port facility 1 husseyn umar, maritime law and shipping problems in indonesia (jakarta: pustaka sinar harapan, 2001), 235 2 olga soejono, "the application of legislative regulations in the port sector about the organization and work procedures of port administrators," in enhancing the role of law and legal protection in sea transportation activities (jakarta: ind.hill-co, 1987), 20. 3 http://www.hukumonline.com/berita/baca/lt547f2fca0e249/penegakan-law-on-the-sea-still-has-barriers, accessed april 4, 2018. 4 fred r david, strategic management concepts (14th edition) (new jersey: pearson education limited. essex, 2013), 32. 5 christian bueger, what is maritime security? (wales uk: cardiff university press, 2015) 21. 6 http://www.mgi.esdm.go.id/content/morfologi-dasar-laut-indonesia, accessed on march 28, 2019. 7 eddy suryanto soegoto, “factors affecting ports in kti visited by fleet perintis”, unikom scientific magazine 7, no. 1 (2013), 3. 8 pelni, privatization and post privatization (surabaya: pt (persero) pelabuhan indonesia iii), 1. http://www.mgi.esdm.go.id/content/morfologi-dasar-laut-indonesia lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 21 security / isps code 2002) in indonesia's territory. isps code itself came into effect in indonesia starting july 1, 2004.9 although the isps code was officially declared valid in indonesia on july 1, 2004, however, in its implementation, it appears that it has not been implemented optimally. one example is when the tengela incident occurred at motor boat levina i and lampung motor ship. this incident is an indication that there are still many ports that are not ready to implement the isps code properly. this is, of course, the result of a lack of understanding from all parties in implementing the isps code at ports and on ships to become a separate problem for human resources in the port environment.10 these problems make the authors feel interested in analyzing based on the data and sources obtained. the formulation of this research's problem is, how are the regulatory provisions in the 2002 isps code and the implementation of indonesia's regulations? the type of research used is normative legal research which is sourced from primary, secondary, and tertiary legal materials, which data collection is carried out by literature study. b. discussion 1. maritime security regulations relating to ship security standards and port facilities in the international ship and port facility security code 2002 the international code for the safety of ships and port facilities contains the mandatory provisions made in chapter xi-2 of the international convention for the safety of life at sea (solas convention 1974) as amended. changes to solas 1974 were made in chapter v. safety of navigation and additions to chapter xi to chapter xi-1 regarding special measures to enhance shipping safety (special measures to enhance maritime safety) and chapter xi-2 stepsspecial measures to enhance shipping security (special measures to enhance maritime safety) known as the international ship and port facility security code (isps code) or the international code for the security of ships and port facilities.11 the isps code has two parts: part a and part b. part a contains the mandatory rules that must be applied in the safety standards of ships and port facilities. in contrast, part b contains additional rules regarding the application of part a. the code uses a management approach to ensure ships and port facilities' safety and determine appropriate security measures. a risk assessment should be carried out in each particular case.12 its original aim was to establish an international framework that involved cooperation between governments, government agencies, local governments, and the shipping and port industry to detect security threats and take precautions against security incidents affecting ships or port facilities used in international trade. this includes determining the respective roles and responsibilities of signatory governments, government agencies, local administrations, and the shipping and port industry at the national and international levels to ensure maritime security. as well as ensure initial and efficient data collection and exchange of information related to navigation safety.13 this includes providing a methodology for security assessments so that plans and procedures are in place to react to security level changes and ensure confidence that there are adequate and proportionate maritime security measures.14 9 barry buzan and lene hansen, “beyond "the evolution of international security studies?”, security dialogue 41, no. 6 (2010): 659-667, 660. 10 makmur keliat, "keamanan maritim dan implikasi kebijakannya bagi indonesia." jurnal ilmu sosial dan ilmu politik 13, no. 1 (2009): 111-129, 112, doi:10.22146/jsp.10970. 11 isps code, 116 12 c. bueger, “what is maritime security?”, marine policy journal 53, (2015): 159-164, 160, doi: 10.1016/j.marpol.2014.12.005 13 muhammad edrian, “melihat keamanan maritim indonesia dari ide poros maritim”, jurnal defendonesia 2, no. 2 (2017): 17-24, 21. 14 isps code part a, part introduction, 4. https://www.jstor.org/stable/i26301694 maritime security regulation concerning international ship … ayu kusumawardani 22 a. arrangement of international ship and port facility security code 2002 part a this section on defining the isps code explains some terms and meanings used and used in describing the situation, terms and meanings in the safety standards of ships and port facilities:15 1) designated authority (da) is an administrator known within the government who agrees with the one responsible for ensuring the implementation of the articles' security of the security of port facilities and ship or port relations from the point of view of port facilities. in this case, the director-general of sea transportation. 2) port security committee (psc) or the port security committee is an organization consisting of the coordinator, head of the security and rescue sector as the executive coordinator, and representatives of related agencies. 3) a recognized security organization (rso) or a recognized security organization is an organization with proper security and proper knowledge of ship and port operations, which is authorized to carry out an assessment, or a certification activity, required by part a of the isps code. 4) ship security assessment (ssa) a ship safety assessment is generally carried out before making a ship security plan. 5) ship security plan (ssp) or ship security plan is a design made to ensure its application to steps or actions on board a ship designed to protect people on board, its cargo, cargo transportation units, supplies the ship or the ship itself from various threats, risks, events or incidents that threaten the safety of the ship. 6) port facility security assessment (pfsa) or port facility security assessment is generally carried out before making a port facility security design. 7) port facility security plan (pfsp) or port facility security plan, is a design that is built to ensure its application to steps or actions designed and built to protect port facilities, ships, people, their cargo, cargo transportation units, and ship supplies within port facilities from the risk of an incident or security incident. 8) company security officer (cso) or company security officer, is personnel assigned by the company to ensure that a ship safety assessment has been carried out, that a ship security design is strengthened, submitted for approval and then applies and maintains it and to liaise with port facility officers and ship security officers. 9) ship security officer (sso), or ship security officer, is a person on board who is responsible for the captain appointed by the company as the person in charge of ship security, including implementation and maintenance of ship security designs and coordinate with company security officers and port facility security officers. 10) port facility security officer (pfso), or port facility security officer, is responsible for developing, implementing, changing, and maintaining port facility security designs and liaising with ship security officers and company security officers. 11) statement of compliance of a port facility (socpf) is a written statement from the government (da) that port facilities meet the requirements in ispscode. so a port that complies with the isps code means that it has socpf. 12) international ship security certificate(issc) is an international ship safety certificate. such certification is issued or authorized by an administration or by a recognized security organization acting on behalf of an administration or an international ship security organization, the validity period of which cannot be more than five years. 13) security level 1 or security level 1 is the level at which the minimum protection from appropriate security measures should be maintained at all times. 15 isps code, 4-18. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 23 14) security level 2 or security level 2 is the level at which additional protection from appropriate security measures should be maintained for a certain period due to an increased risk of a security incident. 15) security level 3 or security level 3 is the level for the continuation of specific protective measures that should be set for a limited period when a security incident is possible or real. however, it may not be possible to find or recognize specific objectives. 16) mobile offshore drilling unit or mobile offshore drilling unit is an offshore drilling unit that is mechanically actuated as defined in rule ix / 1 or not in its location. 17) ship to ship activity is any activity that is not related to port facilities, including the transfer of cargo and/or people from one ship to another. 18) ship / port interface or ship / port interact is an interaction that occurs when a ship is taking place and is immediately affected by an action involving the movement of people, goods, or supplies from port services to or from the ship. 19) declaration of security (dos) or security declaration is an agreement reached between a ship. it can also be a port facility or other ship and interact with each other in determining the security measures to be implemented by each party. 20) ship security alert system (ssas) is a system that contributes to the efforts of the (imo) international maritime organization to strengthen security as well as protect the maritime world and suppress acts of terrorism and piracy against ships in the middle of the sea. 21) automatic identification system(ais) or automatic identification system. an automated tracking system is used on ships and ship traffic services to identify and locate electronic vessel data exchanges with other vessels nearby. 22) verification is an inspection or audit of the ship security design (ssp) and/or port facility security design (pfsp), as well as all related provisions and procedures in ship and port security designs that must be met. each state that signs the framework set out in the isps code has the obligations and objectives as a party that participates in implementing these arrangements into ships' safety standards and port facilities applicable in their country. thus, there are several terms and conditions for implementing the isps code:16 1) intended for ship types operating on international shipping: a) passenger ships, including high-speed passenger ships. b) freight ships, including high-speed ships with size 500gt c) the mobile offshore drilling unit 2) a port facility is serving ships operating on international shipping. 3) isps code is effective as of july 1, 2004, so this code does not apply to warships, naval support equipment, or other vessels owned or operated by a signatory state. it is only used for non-commercial government services. 4) collect and assess information relating to security threats and exchange this information with the government concerned. 5) requires maintenance of communication protocols for ship and port facilities. 6) prevent unauthorized access to ships, port facilities, and restricted areas. 7) prevent the use of unauthorized weapons, incendiary devices, or explosives for ships or port facilities. 8) provides a means of raising alarms in response to security threats. 9) requires a port and ship facility security plan based on a security assessment. 10) requires training, practice, and practice to ensure familiarity with the plan and the safety of procedures. 16 isps code article 3.1 maritime security regulation concerning international ship … ayu kusumawardani 24 the regulation of the level of security that takes effect at a certain time is the government party's responsibility to the signatory. it can apply to ship and port facilities. part a of this code defines three levels of security for international use. this is:17 1) security level 1, normal; the rate at which ships and port facilities normally operate; 2) security level 2 enhanced; the level of applicability as long as there is a high risk of security incidents; and 3) security level 3, exceptional, the level that applies to a period when there is a possible or imminent risk of a security incident. b. arrangements for international ship and port facility security code 2002 part b part b briefly describes the process involved in establishing and implementing the steps required to achieve and maintain compliance with the provisions of chapter xi-2 and part a of this code and can identify the main elements guiding paragraphs 2 through 19 part b. this section also sets out important considerations, which must be considered when considering provisions relating to ships and port facilities' safety.18 the guidelines given in this section compile several things, especially relating to ships' protection while in port facilities. however, when a ship may pose a threat to port facilities, such as being inside a port facility, it can be used as a base for initiating an attack. when considering appropriate security measures to respond to ship-based security threats, those tasked with drafting a port facility security assessment framework or preparing a port facility security plan should consider the guidance offered in the following sections.19 the isps code states that nothing in this part of the code can be read or interpreted contrary to any of the provisions of either chapter xi-2 or part a of the code. the guidance provided in this section of the code should always be read, interpreted, and applied consistently with the goals, objectives, and principles set out in chapter xi-2 and part a of this code.20 based on the explanation in this part of isps part a and part b, isps describes implementing the isps mechanism for signatory countries wishing to implement isps as part of their respective countries' national regulations. in general, isps provides a structured systemization of procedures up to the verification and certification stages. this, of course, makes it easier for each signatory country to follow the required applied mechanisms. in indonesia, especially in several ports specifically allocated to pt pelindo, they are late in meeting the isps code compliance standards. several ports in indonesia that have been recognized for certification and facilities by the united state coast guard (uscg) include pt terminal peti kemas surabaya, port banjarmasin, pt pertamina upms iii jakarta, pt pertamina up v balikpapan, senipah terminal total e&p indonesia balikpapan, pt caltex oil terminal dumai, pt pelindo ii jakarta conventional terminal, jakarta international container terminal, pt pupuk kaltim bontang, pt badak bontang. pt indominco mandiri bontang, pt pertamina up ii dumai, pt pelindo i dumai branch, semarang international container terminal, belawan multi-purpose terminal, pt multimas nabati asahan.21 2. implementation of the 2002 isps code in indonesia 17 ah madjid, “maritime through improving the maritime security system”, national security journal 1, no. 1 (2015). 18 nancy bermas-atrigenio, “governments in disaster risk reduction”, tropical coasts 14, no. 2 (2007): 1-64, 20. 19 http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmark-achievementofgood-maritimegovernance/, accessed on august 29, 2019. 20 part b general provisions 21 http://dephub.go.id/beta2017/post/read/16-pelabuhan-di-indonesia-diakui-amerika-telahmengimplementasikan-isps-code-sec1011, accessed on august 29, 2019. http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmark-achievementofgood-maritime-governance/ http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmark-achievementofgood-maritime-governance/ http://dephub.go.id/beta2017/post/read/16-pelabuhan-di-indonesia-diakui-amerika-telah-mengimplementasikan-isps-code-sec1011 http://dephub.go.id/beta2017/post/read/16-pelabuhan-di-indonesia-diakui-amerika-telah-mengimplementasikan-isps-code-sec1011 lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 25 the navigation service system's role is one way to realize security protection for various maritime activities in indonesia. since the implementation of the isps code through the minister of transportation regulation number 134 of 2016 regarding ship security management and port facilities, it was recorded that in 2017, 367 port facilities in indonesia had implemented the isps code.22 ports are generally organized for the benefit of public transportation services. the government carries out the administration of ports, and its implementation can be delegated to state-owned enterprises.23 the indonesian government, in this case, has developed the port area since 1960. port public company (perum) in indonesia is divided into four operating areas, which were formed based on government regulation number 15 of 1983. the status of this perum was later changed to pt (persero) pelabuhan indonesia i until iv in 1992 to present (operational area, 2010). pt pelindo i is located in medan, pt pelindo ii is domiciled in jakarta, pt pelindo iii is domiciled in surabaya and pt pelindo iv is domiciled in ujung pandang.24 the directorate general of sea transportation of the republic of indonesia as the designated authority made it clear that the isps code's implementation in indonesia implements optimal international security rules for ships and port facilities.25 every indonesian ship and port that cannot meet the isps code's provisions will impact indonesian ports that will not be entered by foreign ships, rejection of indonesian ships by ports in other countries and trade and the country's economy will be disrupted.26 thus the indonesian government sets several rules as a concrete manifestation of isps code implementation in indonesia, as follows: a. law no. 17 of 2008 concerning shipping; b. minister of transportation regulation number 134 of 2016 concerning ship security management and port facilities; c. minister of transportation regulation number 189 of 2015 concerning organization and administration of port authority and port authority; d. regulation of the minister of transportation number pm 7 of 2019 dated february 20, 2019, concerning the enactment of the use of ais (automatic identification system) on ships sailing in indonesian waters; e. decree of the minister of transportation number 33 of 2003 concerning enforcement of the 1974 solas amendment on safeguarding ships and port facilities (international ships and port facility security / isps code) in indonesian territory; f. decree of the minister of transportation number 3 of 2004 concerning the appointment of the director-general of sea transportation as the designated authority for the implementation of safeguarding ships and port facility security (isps code); g. decree of the director-general of sea transportation kl. 93/1 / 3-04 dated february 12, 2004, concerning guidelines for recognized organizational designation (rso); h. decree of the director-general of sea transportation number um-48/6 / 16-04 dated march 19, 2004, regarding guidelines for follow-up steps in the context of implementing the decree of the minister of transportation number km.3 of 2004 (establishment of psc); i. decree of the director-general of sea transportation number kl.93 / 2 / 1-04 dated may 14, 2004, concerning the appointment of the director of guard and rescue as person in charge of implementation of the international code on implementation of security for ships and port facilities-isps code 22 hubla.dephub.go.id/berita/pages/indonesia-implementasikan-isps-code-.aspx, accessed on april 6, 2019. 23 makmur keliat, loc.cit. 24 ibid. 25 ibid. 26 ibid. maritime security regulation concerning international ship … ayu kusumawardani 26 j. decree of the director-general of sea transportation number kl.933 / 3 / 7dv-04 dated june 30, 2004, regarding the guidelines for applying the isps code (dos procedure) k. decree of the director-general of transportation number um-480/12/3 / dv-04 dated july 1, 2004, regarding the isps code implementation guidelines. l. decree of the director-general of sea transportation number um-933/3/20 / dv-04 dated july 9, 2004, regarding the guidelines for the application of the isps code (application of pre-arrival notification of ship security) m. decree of the director-general of sea transportation no. kl.933 / 7/8 / dv-04 dated september 27, 2004, concerning the preparation of port and port facilities verification and ships. n. decree of the director-general of sea transportation no. 327 / phbl-04 dated december 24, 2004, concerning the communication network frequency for the isps code, namely freq. 156,675 mhz (chanel 73) o. decree of the director-general of sea transportation no. kl.933 / 1/12 / dv-05 dated january 4, 2005, concerning follow-up on the results of verification of the application of isps code on ships. p. decree of the director-general of sea transportation no. kl.933 / 2/1 / dv-05 dated april 7, 2005, concerning the maintenance and improvement of isps code implementation for ports / port facilities obtained socpf. q. decree of the director-general of sea transportation no. kl.933 / 1/16 / -05 dated july 26, 2005, concerning improving the application of the isps code for ports / port facilities that have obtained socpf. r. letter of the director-general of sea transportation number kl.993 / 17/15 / dv-04 dated january 3, 2004, concerning the implementation of the isps code (supervision by psc / pso) the indonesian government's regulations show the systematic steps taken in realizing the safety standards for ships and port facilities by distributing regulations to the parties to handle problems related to navigation. in indonesia's practice, the isps code regulation has been determined in several areas divided into four indonesian port zones.27as an example of the implementation of the isps code, the condition of the port of indonesia 1 (pelindo 1) belawan main port is one of several ports in indonesia that has been declared compliance or fulfilled by the director-general of sea transportation as da (designated authority) through the "short term statement of compliance of a port facility ”with kl number 94/93 / isps / dv / st-04 which was issued on july 1, 2004, in jakarta. several examples of companies are recognized as rso in indonesia, such as semen andalas indonesia, pt. waruna nusa sentana and pt pertamina jetty, which oversees pt pelindo 1.28 second, the isps code framework shows that the arrangements contained therein are a form of prevention and handling efforts that occur in ships and port facilities by explaining to each contracting government to take preventive measures as attached to the objectives of the 2002 isps code. regarding law enforcement on maritime security on ships and port facilities, it will be returned to a joint agreement between countries that agree on law enforcement outside of what is stipulated in the 2002 isps code. for example, indonesia also agreed to an action plan agreement with australia related to maritime security.29 explanation in the implementation of the 2002 isps code in indonesia, data was obtained from the ministry of sea transportation. as many as 367 ports in indonesia had implemented 27 safril hidayat, ridwan, “kebijakan poros maritim dan keamanan nasional indonesia: tantangan dan harapan”, jurnal pertahanan dan bela negara 7, no. 3 (2017): 107-121, 113-114, doi: 10.33172/jpbh.v7i3.232. 28 https://www.pelindo1.co.id/id/gcg/pages/isps-code.aspx, accessed on august 29, 2020. 29 https://news.detik.com/berita/d-3919793/ini-9-poin-kerja-sama-maritim-indonesia-australia, accessed on august 29, 2020. http://dx.doi.org/10.33172/jpbh.v7i3.232 https://www.pelindo1.co.id/id/gcg/pages/isps-code.aspx https://news.detik.com/berita/d-3919793/ini-9-poin-kerja-sama-maritim-indonesia-australia lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 27 the 2002 isps code.30 when viewed from the mechanism for implementing the isps code by the indonesian government, it has a positive impact on indonesia's port sector's growth. the contracting states' problems still feel in implementing the isps code are related to the shipping and port security insurance services offered by several insurance firms in various countries. when viewed from a large number of isps code certified ports, not all of them get insurance guarantees and are considered to meet the terms and conditions provided by the insurance service provider. this determines that not all ships and ports that have been certified by the isps code can be accepted at various international institutions providing security services or shipping and port insurance. for example, the international maritime bureau (imb) recorded that in september 2017, 23 attacks were recorded and attempted attacks in the waters or at the tanjung priok port terminal. the joint war committee, which represents various uk-based insurance firms, has also listed tanjung priok's port as a war risk zone since 2015. the negative impact of designating a port as a war risk zone is the imposition of additional insurance premiums (war risk surcharge / wrs) for ships sailing. the amount of premium for these two types of insurance depends on the port state's stability level. this represents various uk-based insurance firms and has also listed tanjung priok's port as a war risk zone since 2015. the bad impact of establishing a port as a war risk zone is the imposition of additional insurance premiums (war risk surcharge / wrs) for ships that sailed. the amount of premium for these two types of insurance depends on the port state's stability level. this represents various uk-based insurance firms and has also listed tanjung priok's port as a war risk zone since 2015. the bad impact of establishing a port as a war risk zone is the imposition of additional insurance premiums (war risk surcharge / wrs) for ships that sailed. the amount of premium for these two types of insurance depends on the port state's stability level. c. conclusion international ship and port facility security code 2002 specifically and regulates ships and port facilities' safety standards. it is divided into two parts, namely part a (part a), which describes the systematic regulation and application of the isps code for the contracting government, including terms and definitions, purpose, scope of security standards for ships and port facilities, and procedures for compliance with the isps code. and part b (part b), which provides clearer guidance related to what has been mentioned in part a includes determination of security levels, implementation of ship security, implementation of security for port facilities, and information and communication. the implementation of the 2002 isps code in indonesia is contained in law number 17 of 2008 concerning shipping and ministerial regulation number 134 of 2016 concerning security management of ships and port facilities as well as other additional rules showing indonesia's consistency as a country through which many international trade routes pass. contributing to the achievement of maritime security standards for ships and port facilities of international standard, with proven that 367 ports in indonesia have been verified by isps code 2002. references a. journal bueger, christian. “what is maritime security?”, marine policy journal 53, 2015: 159-164, doi: 10.1016/j.marpol.2014.12.005. buzan, barry., hansen, lene. “beyond "the evolution of international security studies?", security dialogue 41, no. 6, 2010: 659-667. 30 http://www.harnas.co/2018/08/14/367-pelabuhan-terentuk-isps-code, accessed on august 29, 2019. https://www.jstor.org/stable/i26301694 http://www.harnas.co/2018/08/14/367-pelabuhan-terapkan-isps-code maritime security regulation concerning international ship … ayu kusumawardani 28 edrian, muhammad. “melihat keamanan maritim indonesia dari ide poros maritim”, jurnal defendonesia 2, no. 2, 2017: 17-24. hidayat, safril., ridwan. “kebijakan poros maritim dan keamanan nasional indonesia: tantangan dan harapan”, jurnal pertahanan dan bela negara 7, no. 3, 2017: 107-121, doi: 10.33172/jpbh.v7i3.232. keliat, makmur. "keamanan maritim dan implikasi kebijakannya bagi indonesia." jurnal ilmu sosial dan ilmu politik 13, no. 1, 2009: 111-129, doi:10.22146/jsp.10970. madjid, ah. “maritime through improving the maritime security system”, national security journal 1, no. 1, 2015. nancy bermas-atrigenio, "governments in disaster risk reduction", tropical coasts 14, no. 2, 2007: 1-64. soegoto, eddy suryanto. “factors affecting ports in kti visited by fleet perintis”, unikom scientific magazine 7, no. 1, 2013. b. book bueger, christian. what is maritime security?. wales uk: cardiff university press, 2015. fred r david, strategic management concepts (14th edition). new jersey: pearson education limited. essex, 2013. olga, soejono. application of legislative regulations in the port sector concerning the organization and work procedures of port administrators," in increasing the role of law and legal protection in sea transportation activities. jakarta: ind.hill-co, 2017. pelni. privatization and post privatization. surabaya: pt (persero) pelabuhan indonesia iii. umar, husseyn. maritime law and shipping problems in indonesia. jakarta: pustaka sinar harapan, 2001. c. legislations international ship and port facility security code 2002 (isps code 2002). d. internet http://www.mgi.esdm.go.id/content/morfologi-dasar-laut-indonesia, accessed on march 28, 2019. http://www.hukumonline.com/berita/baca/lt547f2fca0e249/penegakan-law-on-the-sea-stillhas-barriers, accessed on april 4, 2018. http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmarkachievementofgood-maritime-governance/, accessed on august 29, 2019. http://dx.doi.org/10.33172/jpbh.v7i3.232 http://www.mgi.esdm.go.id/content/morfologi-dasar-laut-indonesia http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmark-achievementofgood-maritime-governance/ http://jurnalmaritim.com/2014/11/maritime-security-benchmark-benchmark-achievementofgood-maritime-governance/ 57 paradigm of death penalty (comparative study in indonesia, saudi arabia and china) tedy nopriandi1, risky fany ardhiansyah2 1kejaksaan tinggi sumatera barat, indonesia, email: adinraya83@gmail.com 2kejaksaan tinggi lampung, indonesia, email: kiepujangga@yahoo.com submitted: february 21, 2020; reviewed: february 18, 2020; accepted: april 2, 2020 article info abstract keywords: death, penalty, comparation, crime doi: 10.25041/lajil.v2i1.2032 the death penalty is one of old criminal type as the age of human life, and the most controversial crime in of all criminal systems, both in countries that adhere to the common law system and in countries that embrace civil law, islamic law and socialist law. there are two main thoughts about the death penalty, namely: first, those who want to keep it based on the force provisions, and second are those who wish to the abolition as a whole. indonesia includes a country that still maintains capital punishment in a positive legal system. this paper aims to resolve problems of the death penalty concept concerning the controversy purpose of the death penalty and to analyze the regulations, procedures and philosophies regarding the death penalty in indonesia, saudi arabia and china. this paper uses normative juridical research and the methods based on the doctrine and developed by the author. the approach used the legal approach, historical approach and comparative approach, then analyzed by the customary method. the result of the study shows that the death penalty can be seen from the philosophical aspects of indonesian criminal law, as well as the philosophical aspects of islamic and chinese criminal law. so that everything can not be separated from the essential legal objectives, namely for the creation of justice. death penalty in islamic law turns out the concept of restorative justice specifically for the crime of deliberate killing (al-qatl al-'amd), which the execution highly depends on the victim’s family. the victim’s family, in this case, has the right to choose whether qisas (death penalty) or their apologize for the murder suspect, and diyat payment. while china in the implementation of death penalty applies the concept of rehabilitation, which in the execution of the death penalty is called a death penalty delay for two years and in its implementation, the defendant is given a job and control volume 2 issue 1, 2020: pp. 57-68. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:adinraya83@gmail.com mailto:kiepujangga@yahoo.com https://doi.org/10.25041/lajil.v2i1.2032 paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 58 them. whereas in indonesia, capital punishment is a specific criminal offence and threatened with alternatives and is still a draft criminal code. a. introduction the issue of the death penalty is never run out to be discussed because it always invites the debate of pros and cons based on various opinions, both based on philosophical, sociological, and juridical aspects. the debate is about the effectiveness of the death penalty as a tool of prevention and repression punishment. the global perspective view the existence and the execution of the death penalty, it can be seen from two perspectives, namely the pro-death penalty (retentionist) and counter death sentence (abolisionis). indonesia has formally regulated death penalty in positive law, namely article 10 of the criminal code.1 the existence of the death penalty in the world is a reality that can not be separated from the socio-cultural and historical values of each nation. the united nations also understands this fact. however, the united nations recommends for all of the countries is still justify the death penalty to pay attention about the safeguard quearanteeing protection of the right of those who faced the death penalty which was adopted by the united nations in 1984.2 in history, there have been many examples of people punish with the death penalty, hanged, beheaded, cut down by guillotine, shot and injected. famous people were not excluded from this execution, such as king louis xvi, empress marie antoinette, robespierre, russian emperor nicholas, herman goring, some leader of nazi german at the end of the second world war and most recently saddam hoesein.3 however, some international courts in the world such as the international criminal tribunal for the former yugoslavia (icty), the international criminal tribunal for rwanda (ictr) and the international criminal court (icc) do not apply the death penalty which regulated in each statute.4 whereas in some countries in the world apply the death penalty for the criminal. thus it is needed an analysis related to the comparison of several countries in the world that still apply the death penalty. based on the background, the authors formulate a problem relating to the “paradigm of death penalty with comparative studies in indonesia, saudi arabia, and china”, it is about how the death penalty concept of punishment and the death penalty purpose of imprisonment? and how the regulation, procedure and philosophical death penalty in indonesia, saudi arabia and china. this research is doctrinal research by examining the law which conceptualized and developed based on the doctrine adopted by the conceptor.5 this study uses a statutory approach by reviewing the material content, the ontological basis of the law, the philosophical foundation of the law, and the legis ratio of the law provisions.6 the historical approach of the death 1 nandang sambas, “penerapan pidana mati dalam hukum pidana nasional dan perlindungan hak azasi manusia,” syiar hukum : jurnal ilmu hukum 9, no. 3 (2007): 248-257, 250, doi: 10.29313/sh.v9i3.481. 2 muladi, “proyeksi hukum pidana materil indonesia di masa datang”, presented at the inauguration of professor position in criminal law science, semarang february 24, (1990), 13. 3 saharuddin daming, “konfigurasi pertarungan abolisionisme versus retensionisme dalam diskursus keberadaan lembaga pidana mati di tingkat global dan nasional,” yustisi 3, no. 1 (2016): 37-77, 42. 4 desia rakhma banjarani, abdul muthalib tahar, and desy churul aini, “cepalo studi perbandingan kelembagaan dan yurisdiksi international criminal tribunal for the former yugoslavia (icty) dan the international criminal tribunal for rwanda (ictr) dengan international criminal court (icc),” cepalo 1, no. 1 (2017): 41–56, 58, doi: 10.25041/cepalo.v1no1.1754. 5 soetandyo wignjosoebroto, “ragam – ragam penelitian hukum”, dalam metode penelitian hukum : konstelasi dan refleksi, (jakarta: yayasan obor indonesia, 2011), 121 -122. 6 peter mahmud marzuki, penelitian hukum (jakarta: prenada media group, 2010), 102. https://doi.org/10.25041/cepalo.v1no1.1754 https://doi.org/10.25041/cepalo.v1no1.1754 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 59 penalty is to understand philosophical changes and developments that underlie the rule of law,7 especially in the death penalty. a comparative approach is to provide an assessment of each legal system and to assess the existence of general principles by comparing method.8 the comparative analysis method is used to see the practice of the death penalty in other countries as a learning material of death penalty application to be more effective in indonesia. research with comparative studies is intended to reveal similarities and differences, which this activity is useful for disclosing the background of the occurrence of certain legal provisions in dealing with the same problem from two different countries.9 through legal comparison, it will broaden the horizons of thinking and provide awareness to the planners/implementers of legal development that every legal problem can be solved by more than one way, especially in the development of modern society today.10 according to peter de cruz, another sign of the comparative method lies in what yntema said as the continuous improvement and expansion of our knowledge as forms of important legal education. according to paton as quoted by peter da cruz that it is impossible to imagine the existence of legal science without comparative law, because all schools of law, historical, philosophical, sociological and analytical, rely on comparative research methods’. 11 whereas the reason to choose saudi arabia and china as a country in comparison because the legal system of the death penalty in saudi arabia is based on islamic law which has a strict provision on the death penalty and for its implementation by carried out in the public area. even some people consider that the death penalty is legally sourced from islamic rule. indeed, according to islamic criminal law adopted by the majority of islamic scholars, it will encounter several criminal offences threatened with the death penalty, such as adultery muhsan, murtad (riddah), accidental murder (qotla amd), etc.12 whereas to choose china as a comparison because if we see from various media and news, china is the country carries a lot of death penalty, amnesty international reports that china is the country that carries the most capital 7 ibid., 126. 8 topo santoso, perbandingan hukum pidana (depok: reading materials for comparison of criminal law courses at the university of indonesia masters program in law, 2011), 1. 9 peter mahmud marzuki, penelitian hukum (jakarta: prenada media group, 2010), 133. 10 the definition of comparative law based on several scholar opinions are as follows. 1. orucu put forward the definition of comparative law as follows: comparative law is a discipline of law that aims to find similarities and differences and also find close relationships between various legal systems; see the comparison of institutions and legal concepts is try to determine the resolution of certain problems in the legal systems referred to object such as legal reform, legal unification, etc.); 2. another definition of the position of comparative law put forward by zweigert and kort is the comparison of the soul and style of different legal systems or different legal institutions or solving legal problems that can be compared in different legal systems; 3. sudarto argues that comparative law is a branch of law from the science of law and therefore it is more appropriate to use the term legal comparison than the term comparative law; 4. romli atasasmita believes that legal comparison is a science that studies systematically and critical-analysis approaches (critical analysis) of law (criminal) from two or more legal systems by using a comparative method that aims to find elements of similarities and differences that provide benefits both theoretically as well as practice. romli atasasmita, perbandingan hukum pidana kotemporer (jakarta: fikahati aneska, 2009), 12-15 11 peter de cruz, perbandingan sistem hukum: civil law, common law dan socialist law, diterjemahkan narulita yusron dari comparative law law in a changing worrld (bandung: nusa media, 2010), 28. according to ade maman suherman, the comparison of the legal system is aimed at obtaining a comprehensive understanding of all legal systems in exist globall or at least obtaining a benefit consisting as follow: (1) internal benefits by studying the comparison of the criminal legal system can understand the cultural portrait in own country law and adopt positive things from foreign law for national law development, (2) external benefits by studying the comparison of legal systems, both individuals, organizations and countries can take the right attitude in making legal relations with other countries with different systems the law, (3) for the benefit of harmonizing the law in the formation of supranational law. ade maman suherman, pengantar perbandingan sistem hukum (jakarta: raja grafindo persada, 2006), 19. 12 ahmad rofiq, hukum islam di indonesia (jakarta: raja grafindo persada, 1995), 39 paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 60 punishment in the world. in its annual report, amnesty international said the number of people punishes to the death penalty in china reached thousands.13 a. discussion 1. criminalization concept and death penalty controversion the concept of punishment (its purpose, role, and function) has become a fascinating discourse, not only seen from the discipline of law but also other disciplines, from criminal law, criminology and criminal justice. the thought develops about the theory of punishment, begins with the retributive flow that emphasizes the importance of crime as a rational reaction to crime, without the need to reduce goals further. then comes the thought of deterrence which emphasizes crime as an effort to prevent recurrence of crime, both of a special nature (for perpetrators) and for the public. furthermore, by borrowing the concept of the medical world in the flow of rehabilitation that sees the criminal as a medicine for sick people (perpetrators of crime) by improving and conducting resocialization. 14 the various criminal objectives are grouped by antony duff and david garland in two large groups, namely:15 a. for consequentialists, good or not something depends on the consequences as a whole. if the consequences are good, then the action is right, and if the consequences are bad, then the action is wrong. therefore, to find criminal justification must be proven that; a) the criminalization brings goodness; b) the punishment prevents worse events: c) there are no other alternatives that can provide equally good results. in this perspective crime prevention is the main objective of punishment. b. non-consequentialist is mostly viewed at the importance of justification efforts on criminal conviction as an appropriate response (appropriate response) to crime. indeed, the death penalty is a denser type of crime than the other types of crime because by death penalty human lives are taken which human life is the most valuable as human beings, and human rights are defended every life.16 however, does capital punishment affect to take the effectiveness of the law? it must be done by studying empirically and factually. as said by marjono reksodiputro, the threat of the death penalty by reducing crime is very hypothetical. less can be proven, but it does not mean that it can not be reduced. even people say abolishing capital punishment, but they cannot prove that capital punishment is ineffective. 17 the international community also shows attention to the threat of the death penalty. in 1987 in syracuse, italy, an international conference on the death penalty was held. in the conference discussed various death penalty regulations in various countries in the world. it can be described as follows:18 a. a state that has completely abolished the death penalty in 32 (thirty-two) countries; b. states threat death penalty only for some crimes in 18 (eighteen) countries, based on military law or based on the condition of that state; 13 http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cina-eksekusi-4000-terpidanamati. accessed on ocotber 16, 2019. 14 harikristuti harkrisnowo, “rekontruksi konsep pemidanaan: suatu gugatan terhadap proses legislasi dan pemidanaan di indonesia”, inauguration ceremony of professor of the university of indonesia, depok march 8, (2003), 11. 15 ibid. 16 robby septiawan permana putra, rb sularto, and untung sri hardjanto, “problem konstitusional eksistensi pelaksanaan pidana mati di indonesia,” diponegoro law journal 5, no. 3 (2016): 1-18, 2. 17 s andi and sutrasno a latar belakang, “penerapan pidana bagi pecandu, korban penyalahguna dan pengedar narkotika,” seminar narkoba 2013 (surakarta university, 2013), 6. 18 muladi, “proyeksi hukum pidana materil indonesia di masa datang”, speech of inauguration of professor, diponegoro university, semarang, (1990), 13. http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cina-eksekusi-4000-terpidana-mati http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cina-eksekusi-4000-terpidana-mati lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 61 c. countries are de facto abolitionists in 16 (sixteen) countries; d. countries are 110 retentionist groups (one hundred and ten countries), including indonesia. the death penalty has controversy debate among legal observers. some observers think that the death penalty needs to be done because the death penalty is an effort to eliminate a person and cannot be returned anymore. the existence of the death penalty also eliminates the obligation to maintain prisoners in prisons, so it can be concluded that the existence of the death penalty can reduce a person who is not responsible for their actions.19 some of the expert’s views who pro about the death penalty include:20 hazewinkel-suringa “argues that the death penalty is a radical cleaning tool for revolutionaries of every age that we can use”. bichon van tselmonde states that “i still believe, that the threat and implementation of the death penalty must be in every state and every straight society, both in terms of legal decisions and from any angle then the death penalty cannot be abolished, it is jure divino humano. criminal swords are the same as swords, in general, that must exist in every country. these rights and obligations cannot be given away. but it must be maintained and also used.” while cesare beccaria and jeremy bentham refused the death penalty, beccaria expressly rejects the death penalty because based on the death penalty cannot prevent people from committing a crime and even reflects brutality and violence. in addition, he also believes that the death penalty shakes and destroys the moral feelings of society as a whole and weakens general morality. jeremy bentham stated that criminal law should not be used as a means of retaliation but to prevent crime. regarding the death penalty, bentham’s also states that death penalty accompanied by extraordinary cruelty and brutality is not a satisfying crime because it creates greater suffering than is needed for that purpose.21 2. comparative analysis: regulation, implementation and philosophy of death penalty in indonesia, saudi arabia and china a. death penalty regulation unlike the criminal law of indonesia and china, in the criminal law of saudi arabia (islam), criminal acts that are threatened with death penalty some contain public law dimensions, and some contain public and private law dimensions as well.22 the crime of deliberate murder (alqatl al-’amd) is the only crime that belongs to the dimensions of public and private law. crimes belonging to the dimension of public law (haqq li allah) do not have the opportunity to free the defendant from the threat of the death penalty. thus, any party, including the executive, has no right to apologize/forgive him. on the other hand, criminal acts belonging to the public and private dimensions are very open opportunities for the defendant to be free from the threat of the death penalty. ibn al-arabi in his interpretation explained that the meaning of the verse that says kutiba (required) is: furida wa ulzima iza aradtum istifa ‘(fattened and required upon you the qisas if you want to carry it out). the victim’s family, in this case, has the right to choose whether the qisas (death penalty) is carried out or they apologize to the murder suspect so that the qisas does not need to be done.23 based on the description above, other policies offered by islamic criminal law beside the death penalty are diyat payments. in addition to diyat payments, another policy is to forgive the 19 barda nawawi arif, kebijakan hukum pidana (jakarta: prenada media group, 2010), 8. 20 j. e. sahetapy, suatu studi khusus mengenai ancaman pidana matiterhadap pembunuhan berencana (jakarta: rajawali, 1982). 21 muladi & barda nawawi, teori teori dan kebijakan pidana (bandung: alumni, 1998). 22 the dimension referred to criminal act that is classified into hudud which is the right of god (haqq li allah), so that no one is allowed to forgive/release a suspect from criminal charges set by god. on the contrary, private law here means criminal acts classified as qisas/diyat which are individual rights (haqq al-afrad al-adami). so that the suspect can be free from the death penalty if forgiven by the victim's family. 23 ibn al-arabi, ahkam al-qur’an (beirut: dar al-kutub al-ilmiyyah, 1988), 89. paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 62 perpetrators of murder (free from all charges). it is different from the force regulation in indonesian and chinese criminal law wherein indonesian criminal law forgiveness for the death penalty is done with clemency. roeslan saleh, in an article, said: it often happens that the head of state (president) pardons the convicted person and turns the death sentence into a life sentence.24 the existence of clemency by the president is inseparable from one of the factors that alleviate the defendant, such as the possibility of the defendant being scouted or rehabilitated. while forgiveness in china is carried out when the convicts undergo death penalty known as delayed death and in the implementation of the postponement if the convicted behaves well then the threat of capital punishment can be changed to life imprisonment. in china, it is known that the delayed death penalty is set in the chinese criminal code; the basic provisions are: postponement of execution for two years can be decided at the time of the death penalty. if a person who is sentenced to postpone the death penalty behaves well, then he is given a reduction in life imprisonment. but if he shows a devoted service, then he gets a criminal reduction of not less than 15 years and no more than 20 years in prison. whereas if it is proven that he committed a crime intentionally, the death penalty is carried out with the approval of the supreme court. the postponement of capital punishment in china can also be said as “conditional death sentence”.25 this is different from in saudi arabia and in indonesia, which does not know the delayed death penalty. however, the concept of the death penalty, which is a special principle has been introduced in the indonesian penal code draft, which in article 63 of the penal code draft said: “the death penalty is a specific basic crime and is always threatened with alternatives”. the regulation of the death penalty in article 63, the death penalty is still needed as part of criminal sanctions that can be imposed by a judge.26 death penalty as a special criminal offence and threatened with alternative crimes in the indonesian penal code draft have similarities to the concept of criminal delayed in china. for crimes that are punishable by death in saudi arabia based on the provisions of the qur’an and the hadith. the types of criminal acts contained in the qur’an and hadiths, whereas in china, the criminal acts are threatened with the death penalty decrease. according to keith b. richburg as written in the washington post, “changes in the law that came into force in may 2011 have reduced the number of crimes threatened with death, from 68 crimes to 55 crimes. the crimes that were removed were mostly economic and non-violent, such as smuggling cultural objects and robbing graves.27 changes to the death penalty in china may reflect sensitivity to international criticism. in this case, it is not like political criticism or economic policy, and not in an area that does not touch on the core ideology of the communist party. whereas in indonesia, criminal offences threatened with capital punishment were initially only contained in the criminal code, then continued to grow with the inclusion of the death penalty in other laws outside the criminal code b. the implementation of the death penalty every death penalty execution has a pain that is felt by the convicts that cannot be avoided. however, it does not mean that it is justified to choose any model to carry out the death penalty. the execution of the death penalty must pay attention to the purpose of the execution (for the 24 roeslan salaeh, kitab undang-undang hukum pidana dengan penjelasannya (jakarta: aksara baru, 1987) , 62. 25 andi hamzah, perbandingan hukum pidana beberapa negara (jakarta: sinar grafika, 2008), 40. 26 rudi satriyo mukantardjo, “rkuhp nasional menghindari pidana mati”, paper presented at the socialization of the draft criminal code book conducted by the directorate general of laws and regulations of the indonesian ministry of justice and human rights, jakarta, 29 july 2004. 27 keith b. richburg, washington post, june 25, 2011. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 63 death of the defendant) not to torture the accused. the implementation of the death penalty in several countries.28 punishmen t types implementatio n death process indications of human rights violations the country that applies hanging punishment on the neck of the defendant was tied by a rope, then the defendant’s footboard was pulled. five minutes the defendant is tortured for 5 minutes iraq, iran, india, japan, malaysia, singapore neck slashing punishment 1. the executioner swings the sword at the victim’s neck; 2. the executioner places the victim’s head on the behead and then drops it directly death the defendant immediately died, but these actions were classified as sadistic. saudi arabia, qatar, yemen shot at deadly target shooting officers/squads take direct shots on the defendant’s heart, temple or back of the head heart: 7-11, large blood vessels: 7-15, minutes head / brain: die instantly targets can be incorrect, but in the process of dying is not torture. libya, palestine, yemen, china, indonesia. electrocute d the defendant is placed on an electric conduit, bound and electrically flowed depends on immune body torture america put in the gas room the defendant was put in a poisonous gas chamber until death depends on immune body torture mexico, state of colorado, north carolina 28 hwian christianto, “tata cara pelaksanaan pidana mati bagi terpidana mati dalam hukum pidana”, jurnal konstitusi 6, no. 1 (2009): 25-38, 26. paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 64 injected death the defendant is injected by certain substances that cause the cessation of the body’s living system. thirty second the defendant does not feel the torture guatemala, philpina, thailand in relation to the death penalty, the method of carrying out the death penalty according to islamic teachings is based on al-baqarah verse 179, which states as follows: “and in qisas, there is a guarantee of survival for you, for all minded people, so it is for you obey”.29 the death penalty in saudi arabia based on islamic law, in carrying out the punishment of qishas, according to imam abu hanifah and ahmad is only allowed to use a sword. the opinion is based on the words of the muhammad prophet: “there is no punishment except the sword qishas,”30 and the implementation is carried out in public with the intention that the public can see and become a deterrent effect on the society. the death penalty in indonesia is currently still referring to the provisions of law no. 2.pnp of 1964 concerning procedures for the implementation of death penalty which still uses the method of shooting with firearms to execute the perpetrators of criminal offences, while for the implementation carried out by the private way. china initially carried out executions with the death penalty in public places with the aim as in saudi arabia, but now there has been a shift by using lethal injection in a bus. it raises suspicion of organs of death penalty defendant. amnesty international stated that they have strong evidence to show the involvement of law enforcement agencies, courts and hospitals in the sale of human organs taken from death penalty defendant. it was done without an autopsy, and the body of the organ had been removed and immediately cremated without the presence of the family.31 c. death penalty philosophy regarding the philosophical aspects of the death penalty in criminal law, it must begin by stating the purpose of punishment. so that three main groups of theories emerge that justify criminal prosecution:32 1) absolute theory or the theory of retaliation (vergeldings theorien): mention that crime does not aim for the practical, such as restoring the crime. the crime itself contains elements to be punishment. criminals exist because of the crimes has occurred; there is no need to think about the benefits of criminal prosecution. 2) relative theory or purpose (doeltheorien); this theory seeks the basis of criminal law in carrying out public order, the consequences and objectives of criminal trials, public prevention, so people do not commit the crime. 3) the combination theory (verenigingstheorien); the combined theory of retribution and prevention has variation. some focus on retaliation, and the others want the elements of retaliation and prevention balanced. the sanction in islamic criminal law is not solely intended to retaliate the perpetrators (retributive justice), but also to uphold justice as seen in the qisash and diyat crimes, making deterrent perpetrators/special interventions in granting hudud offences, giving general prevention which also appears in the hudud punishment, as well as to correct the perpetrators 29 al-qur’an, 44. 30 akhiar salmi, eksistensi hukuman mati (jakarta: aksara persada, 1985), 178 31 http://www.indonesiamedia.com/2010/01/17/hukuman-mati-di-china/, accessed on ocotber 16, 2019. 32 andi hamzah, asas asas hukum pidana (jakarta:yasrif watampone, 2005), 32. http://www.indonesiamedia.com/2010/01/17/hukuman-mati-di-china/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 65 (more visible from ta’zir punishment).33 whereas in china, the death penalty is justified based on two places: 1) retribution (mainly based on public anger and 2) prevention,34 and in the sentence of the death penalty must be given to the community for a violation or defamation of consensus that occurred in the community in order to live side by side peacefully.35 whereas in indonesia, the death penalty is still applied because the death penalty has an effective level that is higher than the threat of another death sentence which has a frightening effect (shock therapy) but on the one hand is also more efficient.36 besides that, the strong criminal function which emphasizes retributive aspects is still maintained in indonesia. several approaches from the absolute theory of retaliation, such as relative theory and combined theory certainly make important contributions to the perpetuation of the death penalty in indonesia today.37 on the one side, the death penalty is intended as a retaliation (vergelding) of the perpetrators of serious crimes, but on another side is intended as prevention for others. 38 therefore, the death penalty can be seen from the philosophical aspects of indonesian criminal law, as well as the philosophical aspects of islamic and chinese criminal law. so that everything can not be separated from the essential legal objectives, namely for the creation of justice. while sociologist, death penalty can have a deterrent effect or can reduce the emergence of crime that is influenced by the nature of sanctions, certainty and perception of sanctions, as well as the speed of action/application of sanctions. sanctions can be both positive and negative. positive sanctions are in the form of rewards, and negative sanctions are in the form of punishment. punishment has a certain social meaning. therefore the strength of the sanction depends on human perception of the sanction itself, the certainty of its application and also the speed of its action/application. 39 it must be understood that there are 4 (four) minimum requirements, so justice gets its statement, i.e.:40 1) what is fair is at the same time in the middle and comparability. 2) in its nature as a middle, it must have two ends, and between the two ends, it is located. 3) in nature as comparable, the comparability must be expressed in two comparable parts of what is shared. 4) in its nature as fair, there must be certain people for whom it is fair. the relationship between philosophical foundations of the death penalty with the meaning of justice can be seen from the justice standard according to roscoe pound:41 1) justice is one or a set of rules handed down by god to regulate human actions. 2) justice, as a tradition from old habits, turned out to be acceptable and therefore shows the path that humans can safely travel. 3) justice, as wisdom is recorded from the wise people in the past. 2) justice is a set of agreements made by humans in a politically regulated society. 3) justice is thought of as a reflection of the god that rules the universe, that is a reflection of the part that determines what humans should do as moral units. 4) justice is understood as an order from a sovereign authority in a society arranged according to a state system 33 topo santoso, membumikan hukum pidana islam (jakarta: gema insani, 2003), 93. 34 lu hong, “china’s death penalty reforms on capital punishment”, eai background brief 33, no. 412 (2005): 367-376, 368. 35 paulinus soge, “tinjauan yuridis eksekusi pidana mati di indonesia,” yustisia jurnal hukum 1, no. 3 (2012): 94-104, 95, doi: 10.20961/yustisia.v1i3.10092. 36 akhiar salmi, eksistensi hukuman mati (jakarta: aksara persada, 1985) 37 supriyadi widodo eddyono, wahyu wagiman, “catatan atas pengunaan pidana mati di indonesia”, jurnal legislasi indonesia 4, no 4 (2007): 89-93, 89. 38 andi hamzah, pidana mati di indonesia (jakarta: ghalia indonesia, 2000), 35. 39 ratih lestarini., “efektivitas hukuman mati”, jurnal legislasi indonesia 4, no 4 (2007): 52-67, 53. 40 lili rasjidi dan arief sidharta, flsafat hukum, mazhab dan refleksinya (bandung: remaja karya, 1989), 26. 41 roscoe pound, pengantar filsafat hukum (jakarta: bhratara karya aksara, 1982), 28. paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 66 5) justice is an idea as an order from the act relating to human behaviour in society. c. conclusion there are no guarantees of the absence of pain in carrying out punishment, even all of them carry risks such as inaccuracies in the pain execution, but neither is torture. thus, the united nations recommends every country that still justifies the death penalty to pay attention with safeguard quearanting protection of the right of those who face the death penalty which was adopted by the united nations in 1984. on the other side, the death penalty is intended as a retaliation (vergelding) of the perpetrators of serious crimes, but on another side is intended as prevention for others. therefore, the death penalty can be seen from the philosophical aspects of indonesian criminal law, as well as the philosophical aspects of islamic and chinese criminal law. so that everything can not be separated from the essential legal objectives, namely for the creation of justice. death penalty in islamic law turns out the concept of restorative justice specifically for the crime of deliberate killing (al-qatl al-'amd), which the execution highly depends on the victim’s family. the victim’s family, in this case, has the right to choose whether qisas (death penalty) or their apologize for the murder suspect, and diyat payment. while china in the implementation of death penalty applies the concept of rehabilitation, which in the execution of the death penalty is called a death penalty delay for two years and in its implementation, the defendant is given a job and control them. whereas in indonesia, capital punishment is a specific criminal offence and threatened with alternatives and is still a draft criminal code. references a. journal banjarani, desia rakhma., tahar, abdul muthalib., & aini, desy churul. “studi perbandingan kelembagaan dan yurisdiksi international criminal tribunal for the former yugoslavia (icty) dan the international criminal tribunal for rwanda (ictr) dengan international criminal court (icc)”, cepalo 1, no. 1 (2017): 41–56, doi: 10.25041/cepalo.v1no1.1754. christianto, hwian. “tata cara pelaksanaan pidana mati bagi terpidana mati dalam hukum pidana”, jurnal konstitusi 6, no. 1, 2009: 25-38. daming, saharuddin. “konfigurasi pertarungan abolisionisme versus retensionisme dalam diskursus keberadaan lembaga pidana mati di tingkat global dan nasional,” yustisi 3, no. 1, 2016: 37-77 eddyono, supriyadi widodo & wagiman, wahyu. “catatan atas pengunaan pidana mati di indonesia”, jurnal legislasi indonesia 4, no 4, 2007: 89-93. hong, lu. “china’s death penalty reforms on capital punishment”, eai background brief 33, no. 412, 2005: 367-376. lestarini, ratih. “efektivitas hukuman mati”. jurnal legislasi indonesia 4, no 4, 2007: 52-67. putra, robby septiawan permana., sularto, rb., hardjanto, untung sri. “problem konstitusional eksistensi pelaksanaan pidana mati di indonesia,” diponegoro law journal 5, no. 3, 2016: 1-18. sambas, nandang. “penerapan pidana mati dalam hukum pidana nasional dan perlindungan hak azasi manusia,” syiar hukum : jurnal ilmu hukum 9, no. 3, 2007: 248-257, doi: 10.29313/sh.v9i3.481. soge, paulinus. “tinjauan yuridis eksekusi pidana mati di indonesia,” yustisia jurnal hukum 1, no. 3, 2012: 94-104, doi: 10.20961/yustisia.v1i3.10092. https://doi.org/10.25041/cepalo.v1no1.1754 https://doi.org/10.25041/cepalo.v1no1.1754 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 67 b. book al-arabi, ibn. ahkam al-qur’an. beirut: dar al-kutub al-ilmiyyah, 1988. arif, barda nawawi. kebijakan hukum pidana. jakarta: prenada media group, 2010. atasasmita, romli. perbandingan hukum pidana kotemporer. jakarta: fikahati aneska, 2009. de cruz, peter. perbandingan sistem hukum: civil law, common law dan socialist law, diterjemahkan narulita yusron dari comparative law law in a changing worrld. bandung: nusa media, 2010. hamzah, andi. asas asas hukum pidana. jakarta: yasrif watampone, 2005. hamzah, andi. perbandingan hukum pidana beberapa negara. jakarta: sinar grafika, 2008. hamzah, andi. pidana mati di indonesia. jakarta: ghalia indonesia, 2000. marzuki, peter mahmud. penelitian hukum. jakarta: prenada media group, 2010, muladi & barda nawawi. teori teori dan kebijakan pidana. bandung: alumni, 1998. pound, roscoe. pengantar filsafat hukum. jakarta: bhratara karya aksara, 1982. rasjidi, lili dan arief sidharta. filsafat hukum, mazhab dan refleksinya. bandung: remaja karya. 1989. rofiq, ahmad. hukum islam di indonesia. jakarta: raja grafindo persada, 1995. santoso, topo. membumikan hukum pidana islam. jakarta: gema insani, 2003. suherman, ade maman. pengantar perbandingan sistem hukum. jakarta: raja grafindo persada, 2006. c. internet and etc andi, s & sutrasno, “penerapan pidana bagi pecandu, korban penyalahguna dan pengedar narkotika,” seminar narkoba, surakarta university, 2013. http://www.indonesiamedia.com/2010/01/17/hukuman-mati-di-china, accessed on ocotber 16, 2019. harkrisnowo, harikristuti. “rekontruksi konsep pemidanaan: suatu gugatan terhadap proses legislasi dan pemidanaan di indonesia”, inauguration ceremony of professor of the university of indonesia, depok march 8, 2003, 11. keith b. richburg, washington post, 25 juni 2011 muladi, “proyeksi hukum pidana materil indonesia di masa datang”, speech of inauguration of professor, diponegoro university, semarang, 1990. http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cinaeksekusi-4000-terpidana-mati . 16 oktober 2019 rudi satriyo mukantardjo, “rkuhp nasional menghindari pidana mati”, paper presented at the socialization of the draft criminal code book conducted by the directorate general of laws and regulations of the indonesian ministry of justice and human rights, jakarta, 29 july 2004. http://www.indonesiamedia.com/2010/01/17/hukuman-mati-di-china http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cina-eksekusi-4000-terpidana-mati%20.%2016%20oktober%202019 http://www.republika.co.id/berita/internasional/global/11/12/14/lw59bv-setahun-cina-eksekusi-4000-terpidana-mati%20.%2016%20oktober%202019 paradigm of death penalty (comparative study in .... tedy nopriandi & risky fany ardhiansyah 68 29 bioterrorism: the development and its regulations according to the international law yaksa elyasa lampung sweeping community, indonesia, email: yaksaelyasa@gmail.com submitted: august 18, 2020; reviewed: january 7, 2021; accepted: february 9, 2021 article info abstract keywords: terrorism, bioterrorism, international law doi: 10.25041/lajil.v3i1.2103 the biological weapon used as a terrorism facility (bioterrorism) could endanger the lives of mankind. besides its purpose of mass destruction, this weapon has been banned from being used towards the human. bioterrorism threat at least had occurred in more than 30 countries across the globe. in the 14th century, bioterror incidents recorded in black death plagues in europe caused more than 50 million deaths and vanished more than 60% of its population back then. because of the bioweapon impacts, there are concerns if this weapon is under irresponsible parties such as the group of terrorists. several regulations on the prohibition of biological weapons have been made, such as the production and stockpiling of bacteriological [biological] and toxin weapons and their destruction 1972 (biological weapon convention 1972). however, it seems that they have not solved using biological weapons as a means of terrorism. the purpose of this paper is to find out how international law arrangements regarding bioterrorism. this research used normative legal research with secondary data sources and literature study techniques. a. introduction terrorism is a crime that is generally based on ideological, political, and historical motives, and it is also a part of global and regional problems.1 since thousands of years ago, humans have used terror used against the regime born since the existence of power. in the first century, the group 'sicarii' (jews), with its zealot movement, had carried out one tactic with guerrilla warfare to fight against roman rulers with terror.2 terrorists implement a variety of weapons, not only conventional ones but also weapons of mass destruction, for example, biological weapons, to do bioterrorism. since early times, states and terror groups have had the desire and ability to develop the most dangerous pathogens used as biological weapons.3 bioterrorism is 1 muhammad a. s. hikam, deradikalisasi: peran masyarakat sipil indonesia membendung radikalisme, (jakarta: kompas media nusantara, 2016), 33-34. 2 adjie s, terorisme, (jakarta: pustaka sinar harapan, 2005), 1. 3 divashree sharma, ambrish mishra, vilas newaskar, ankit khasgiwala, "bioterrorism: law enforcement, public health & role of oral and maxillofacial surgeon in emergency preparedness", journal of oral and maxillofacial surgery 15, no. 2 (2016): 137-143, 137, doi: 10.1007/s12663-015-0834-x. volume 3 issue 1, 2021: pp. 29-40. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil bioterrorism: the development and its regulations… yaksa elyasa 30 the intentional release of viruses, bacteria, and toxins to create certain diseases that targeted a population to achieve the goals requested by terrorists, creating terror to society.4 bioterrorism attacks affect not only humans but also animals, plants, and the environment as well.5 some bioterrorism incidents had occurred, for example: chart 1.1 the case of bioterrorism no case time/place victim information 1 the black sea bubonic plague 13th century/ kaffa (today known as krimea, ukraine) not known this attack was carried out by tartar forces while attacking genoese forces in kaffa, the black sea. tartar troops were affected by the bubonic plague and caused many of the soldiers to die. then the tartar forces, with their ingenuity, changed the situation by attacking the genoa troops and throwing the dead bodies caused by the plague into the siege to repel the troops out of the city.6 2 rise 1972/ chicago, united states of america no victim/ successfully thwarted by local authorities in 1972 police arrested two college students in chicago, allen charles schwander and stephen pera. they belonged to the terrorist organization called rise that was established in 1971.7 rise was on the verge of releasing typhoid and other bacteria to poisoning chicago the water supply system, to commit mass murder.8 3 rajneeshee 1984/ oregon, united states of america 751 were injured in 1984 in dallas, oregon, a group of bhagwan shree rajneesh’s followers was poisoning the food through the deliberate contamination of salad bars at ten local restaurants with salmonella typhimurium. it sickened 751 people back then, and it is known that they did such an act because the cult tried to manipulate the result of the 1984 election.9 4 nur farida, me and global environment (jakarta: grasindo, 2009), 119. 5 mahendra pal, meron tsegaye, fikru girzaw, hailegebrael bedada, vikram godishala, venkataramana kandi, "an overview on biological weapons and bioterrorism", american journal of biomedical research 5, no. 2 (2017): 24-34, 24, doi: 10.12691/ajbr-5-2-2. 6 robert s. gottfried, the black death: natural and human disaster in medieval europe (new york: the free press, 1985), 37. 7 george michael, lone wolf terror and the rise of leaderless resistance (nashville: venderbilt university press, 2012), 65. 8 https://www.nytimes.com/1972/01/19/archives/2-youths-charged-with-plot-to-poison-water-of-chicago.html accessed on december 16, 2019. 9 w. seth carus, “the threat of bioterrorism”, national defense university institute for national strategic studies 127, (1997): 1-4, 2. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 31 4 aum shinrikyo 1995/ tokyo, japan 13 dead dan thousands were injured in 1995 a japan based religious cult aum shinrikyo committed spread sarin nerve gas, a chemical agent, on the tokyo subway. the cult is also known to be capable of producing biological agents and tried to use them. police investigations suggest that the cult has among its members' skilled scientists and technicians trained and experienced in microbiology, who attempted to make weapons using anthrax, botulinum toxin, q-fever, and even ebola.10 5 anthrax packages 2001/ united states of america more than 30.000 people were infected, five people died, and 17 were injured. one week after the terrorist attack on the world trade center building, america was attacked by an envelope filled with anthrax spores sent to government offices and media companies throughout the country.11 bioterrorism is not a new thing. at least hundreds of bioterrorism incidents have occurred in more than 30 countries around the world.12 biological weapons as weapons of mass destruction are classified as hazardous weapons because of their nature. this type of weapon can kill millions of civilians, jeopardize the natural environment and destroy future generations through their catastrophic effects.13 according to dr. connie rahakundini bakrie, military and defence observers from the university of indonesia said that biological weapons are a popular tool because they are cheap and effective. for example, the use of one gram botulinus would kill 10,000,000 (ten million) people. botulinus is a rare poisoning caused by a poison from the colostridium botulinum. botulism is considered 3,000,000 (three million) times stronger than the best chemical weapons nowadays. in comparison, the cost for the effectiveness of an attack on 1 square kilometre is 2000 us dollars on conventional weapons, 800 us dollars on nuclear weapons, and 1 us dollar on biological weapons.14 because of that, biological weapons are also referred to as “poor man's” nuclear bomb.15 international law has set several provisions concerning the use of biological weapons such as the 1925 geneva protocol and the convention on the prohibition of development, production and stockpiling of bacteriological (biological) and toxin weapons and on their 10 ibid. 11 cameron funk, “america's state of readiness against bioterrorism”, pepperdine policy review 10, no. 1 (2018): 1-20, 1. 12 revaz beshidze, “weapons of mass destruction and international terrorism”, georgia: final project report, (2007): 1-36, 4. 13 isna rasdianah aziz and andika saputra, “bioterrorism: the role of genetics and molecular biology”, prosiding seminar nasional biology for life 3, no. 1 (2017): 63-69, 63, doi: 10.24252/psb.v3i1.5587. 14 https://independensi.com/2020/03/24/covid-19-perang-biologi-berlakukan-darurat-militer/ accessed on march 27, 2020. 15 saira gori1 & anjani singh tomar, "bioterrorism & biodefense: an environmental and public health preparedness", rupkatha journal on interdisciplinary studies in humanities 12, no. 1 (2020): 1-15, 1, doi: 10.21659/rupkatha.v12n2.13. bioterrorism: the development and its regulations… yaksa elyasa 32 destruction (known as "biological & toxin weapon convention" or btwc) 1972. the provisions of the geneva protocol 1925 clearly regulates the prohibition on the use of biological weapons. however, the protocol does not mention the prohibition of producing biological weapons by both the state and individuals. simultaneously, the 1972 btwc convention regulates the prohibition of the production, development, stockpiling of biological weapons and poisons in unjustified quantities and only for peaceful purposes. the btwc coat least 183 countries16, but it cannot be denied that many countries possess and develop biological weapons. several countries still have had or are currently suspected of having biological weapons programs, including argentina, brazil, canada, china, cuba, egypt, france, germany, india, iran, iraq, israel, laos, libya, north korea, pakistan, russia, south africa, syria, taiwan, the united kingdom, and the united states, etc.17 countries' ability to develop biological weapons has increased. it raises concerns about the possibility that terrorist groups will gain a transfer of biological weapon expertise to create bioterrorism through support from countries with such capacity.18 the country's noncompliance with the convention also raises concerns that biological weapons will fall into the wrong hands. on the other hand, terrorist groups and individuals with certain objectives increasingly show an interest in this type of weapon to causing mass fatalities.19 public information openness also impacts the spreading of bioterrorism. according to dr. richard clutterback,20 many experts in the study of terrorism predict the likelihood of terrorists using biological and chemical as one of the prospects of terrorism itself. methods for making nerve gas and biological pathogens easy to learn in recent decades. in actual fact, making sarin can be learned on the internet. likewise, biological and chemical materials are easy to obtain and cheap and easy to learn anywhere.21 therefore, this study aims to examine how international law regulations on combatting bioterrorism. this study's approach method is normative legal research with secondary data sources and literature study techniques. b. discussion and analysis discussion and analysis will further explain and describe 2 (two) main issues: the development of bioterrorism and how international law regulates bioterrorism. 1. the develepoment of bioterorisme historically, the development of biological weapons has long been known to mankind. early 14th century bc, the use of infectious diseases and other biological weapons was recognized.22 the first people documented using biological weapons are the hitties. they weaken their enemies by sending rams (possibly infected with tularemia). in the 4th century bc, the greek historian herodotus relates that archers of the sktihia used to infect their arrows by dipping them in a mixture of decomposed corpses and human blood. according to modern 16 have ratified the btwc convention of the biological weapons convention – united nations office at geneva. 17 w. seth carus, "a century of biological-weapons programs (1915–2015): reviewing the evidence", the nonproliferation review special section: nuclear asia 24, no. 1-2 (2017): 129-153, 138, doi: 10.1080/10736700.2017.1385765. 18 heather a. dagen, “bioterrorism: perfectly legal”, catholic university law review 49, no. 2 (2002): 535-573, 536. 19 ibid. 20 richard clutterbuck, terrorism in an unstable world (london: routledge, 2006), 6. 21 ibid. 22 dennis d. yakubu and daniel a. paul, "biological weapons a global threat: a sustainable approach for early identification", african journal of environment and natural science research 2, no. 2 (2019): 6-11, 6. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 33 world interpretations, the mixture might contained colostridium perfingens and colostridium tetani, as well as snake venom.23 chart 1.2 the use of biological weapons before the era of microbiology year event 14th century bc 4th century bc 1155 1346 1422 1495 1650 1710 1763 1797 1863 the hittites sent infected rams to the enemy to weaken them. according to herodotus, the skithians used to poison their arrows with decomposed corpses. frederick barbarossa, the holy roman emperor, poisoned water well with human corpses in tortona, italy. the mongols threw the bodies of plague victims into the city of kaffa. lithuanian army throws the manure into the town of carolstein (bohemia) made from invected victims. the spanish mixed wine with the blood of lepers to sell to their french enemies. the polish army shoots the saliva of rabid dogs to their enemies. russian army hurls plague cadavers over the swedish troops in reval (estonia). british officers distributed blankets from smallpox hospitals to native americans. napoleon troops flooded the land around mantua (italy) to increase the spread of malaria to the enemy during the american civil war, the confederate sell clothes used by people with yellow fever and smallpox to union troops. source: v. barras and g. greub, history of biological warfare and bioterrorism, journal of clinical and microbiology infection, volume 20, issue 06, 2014, p. 498. the development of modern biological weapons began in the late 19th century based on the science of microbiology initiated by louis pasteur and robert koch and their followers.24 they began to identify and control many biological agents that live in humans and animals, they also allowed scientists to produce certain pathogens on a large scale. in most cases, at least theoretically controlling their dissemination. after decades, this mindset does not seems to have been used as a new way to threaten or terrorize humans.25 modern biological warfare began by countries involved in world war i, especially germany and france (on a limited scale), who have developed secret biological weapons, such as the infections of animal feed with the bacillus anthracis and burkholderia mallei to infect enemies. whatever the impact of this biological weapons program might have been, for the first time in the history of chemical warfare and biological weapons, it has become a major political concern at the international level. as a result, the geneva protocol that bans the use of toxic 23 v. barras and g. greub, “history of biological warfare and bioterrorism”, journal of clinical and microbiology infection 20, no. 06 (2014): 497-502, 498, doi: 10.1111/1469-0691.12706. 24 beth ann fiedler and dmitry nikolaenko, "investigating covid-19: recurring methodological problems in the study of infectious disease", environmental epidemiology 14, no. 2 (2020): 4-12, 2. 25 v. barras, et.al., op.cit., 499. bioterrorism: the development and its regulations… yaksa elyasa 34 gases and bacteriological methods in warfare in 1925 was ratified.26 the main concern regarding the use of biological weapons in the contemporary period then turned to use biological weapons by terrorist groups. after world war ii, several cases of terror with biological weapons then occurred, for example, the case of the 1984 rajneeshee religious cult, aum shinrikyo 1995, and anthrax terror in the united states in 2001.27 2. international regulation on combatting bioterrorism the discussion of biological weapons has begun since the 1925 geneva convention that explicitly addresses biological weapons. but this convention applies only to states' use in warfare, not to non-state actors or use in situations other than "warfare," such as during peacetime or internal conflicts. but after many years, it seems that the efforts to ban the use of biological weapons seem not really successful. until now, several regulations regarding eradicating biological weapons have been formed, for example: a. the convention on the prohibition of the development, production and stockpiling of bacteriological [biological] and toxin weapons and their destruction 1972 (biological weapon convention 1972) for nearly 50 years after the 1925 geneva protocol was signed, no additional international agreements were reached dealing with biological weapons. many countries were developed and produced biological weapons during that time because the geneva protocol doesn't prohibit them. the biological weapon convention was ratified in 1972 on the prohibition of developing, producing, stockpiling, possessing, or maintaining biological agents in amounts that could not be justified for prevention, self-protection, or other peaceful purposes. this convention is not an anti-terrorism convention as the convention does not specifically prohibit the use of biological weapons by non-state actors. indeed, at that time, the state parties did not consider the possibility of bioterrorism when the bwc was conceived.28 but further in article 4, it is stated that "each state party to this convention shall, following its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment, and means of delivery specified in article i of the convention, within the territory of such state, under its jurisdiction or its control anywhere". each country is given the authority to make a regulation based on its jurisdiction to prohibit the use of bioweapons under its national law. however, due to unclear mechanisms in making national regulations, only a few countries have taken administrative action or have enacted national legislation under this convention's provisions.29 b. international convention for the suppression of terrorist bombings (terrorist bombing convention) 1997 the united nations convention on the suppression of terrorist bombings, which entered into force in may 2001, will punish anyone who uses biological weapons by any state and a terrorist organization. the supporters of this convention want firm action to directly criminalize the illegal use, development, and possession of biological weapons by any party.30 the 26 ibid., 500. 27 ibid., 501. 28 eric merriam, “the international legal regime affecting bioterrorism prevention”, national security law journal 3, no. 1 (2014): 1-46, 7. 29 masahiko asada, “security council resolution 1540 to combat wmd terrorism: effectiveness and legitimacy in international legislation”, journal of conflict & security law 13, no. 3 (2008): 303-332, 306-307, doi: 10.1093/jcsl/krp002. 30 david p fidler, "bioterrorism, public health, and international law", chicago journal of international law 3, no. 1 (2002): 7-26, 15. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 35 provision on the terrorist bombing convention is addressing bioterrorism, that the convention will criminalize unlawful and illegal use of "explosive and another lethal device" in, into, or against the place of public use to cause death or serious bodily injury or likely to result in major economic loss. the meaning of ‘explosive or other lethal devices' as written in article 1 paragraph 3 (a) and (b): 3) "explosive or other lethal devices" means: (a) a weapon or device that is designed to explode or incinerate and also has the capability to cause serious bodily injury, substantial material damage, or even death; (b) a weapon or device designed to have the ability to disseminate chemical toxins, biological agents or radiation or radioactive material, or any other similar substances can cause serious bodily injury, substantial material damage, or even death to a human. c. international convention for the suppression of the financing of terrorism (1999) in carrying out an act of terrorism, funding is significant to sustain its operations. furthermore, funding is also needed to promote an ideology, finance terrorist members and their families, fund travel and lodging, recruit and train new members, falsify identities and documents, purchase weapons, and design and carry out operations. therefore efforts to tackle terrorism will not be successful without eradicating its funding activities.31 considering that the funding of terrorism is a severe problem and could endangering the international community as a whole and how much the acts of terrorism depend on how much funding they get. through this convention, united nations general assembly called upon all states to take steps to counteract and prevent all form of the act to financing the terrorism activity through the appropriate domestic measures, whether the financing is direct or indirect through the organizations which claim that their activity is related to charitable, social or cultural goals or which are also engaged in unlawful activities such as drug dealing, racketeering and illicit arms trafficking, including the exploitation of persons for purposes of funding terrorist activities, 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 in any way the freedom of legitimate capital movements and to intensify the exchange of information concerning international movements of such funds.32 the financing of terrorism referred to in this convention covers all forms of terrorism and does not depend on one particular type of terrorism crime, including bioterrorism. crime referred to in this convention is also a crime that can be extradited as long as the country has an agreement and agreed to do so. however, if it does not have a convention agreement, this can be used as a reference. if there are conflicting provisions in the convention, the state parties will consider resolving the problem between them. d. united nation security council resolution 1540 (2004) the united nations security council resolution 1540 of 2004 (in this study referred to as unscr 1540) is a binding international legal resource that outlined regulation concerning eradicating bioterrorism. this instrument was adopted after the 9/11 tragedy as the urgency to prevent weapons from causing mass destruction acted by irresponsible parties (such as terrorist or threatening states). in eradicating bioterrorism, unscr 1540 is considered an effective instrument to preclude terrorists from performing their actions. the development of unscr 1540 in the scope of bioterrorism eradication includes: 1) unscr 1540 focusing more on non 31 monika suhayati, “undang-undang pencegahan dan pemberantasan tindak pidana pendanaan terorisme dari perspektif hak asasi manusia”, jurnal negara hukum 4, no. 2 (2013): 231-249, doi: 10.22212/jnh.v4i2.206. 32 the preamble of international convention for the suppression of the financing of terrorism. bioterrorism: the development and its regulations… yaksa elyasa 36 state actors (individual being); 2) unscr 1540 also apply to biological weapons conventions (bwc) countries; 3) unscr 1540 mandated member states to take into account the prevention of bioterrorism under their jurisdiction, and 4) unscr 1540 becomes the initiator of "quasi compliance" body under limited verification and implementation roles. also, each article in this instrument is considered essential in eradicating bioterrorism. moreover, based on article 7 of the united nations charter, unscr 1540 as one of the security council resolutions will effectively be binding all un member states. compared to some existed conventions such as bwc and cwc (chemical weapon convention), which only centralized its matter in non-state actors and terrorist organizations, the subject of unscr 1540 has begun to shift as mentioned from the first paragraph in unscr 1540: 1. decides that all states shall refrain from providing any form of support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical, or biological weapons and their means of delivery; 2. decides also that all states, following their national procedures, shall adopt and enforce appropriate, effective laws which prohibit any non-state actor from manufacturing, acquiring, possessing, develop, transport, transfer or use nuclear, chemical, or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them; another important element of unscr 1540 is that a security council resolution will be binding to all countries. thus the state cannot ignore its legal obligations to eradicate bioterrorism, whether they agree or not to the provisions. e. protocol to the convention for the suppression of unlawful acts against the safety of maritime navigation (2005 sua convention) the 2005 sua convention is the result of an amendment to the 1988 sua convention in response to the un security council's increasing risk of international terrorism. the new 2005 sua convention has greater scope for violations of the use of nuclear, biological, and chemical weapons (cbrn) and other radioactive materials not contained in previous maritime instruments. the 2005 sua convention also regulates the prevention of cbrn weapons' transportation to reduce the possibility that the weapons will be used in acts of terrorism. this convention is also the first international convention on preventing and eradicating cbrn terrorism in the ocean. the 2005 sua convention was adopted when control of cbrn weapons came to the un security council's attention during diplomatic conferences. the un security council takes several actions relating to the risk of terrorism by using nubika weapons, including unscr 1540. the key features in this convention:33 (1) the 1998 sua convention outlined international cooperation working under the commission of unlawful acts concerning the safety of maritime navigation, as follows: the series of violent acts against a person who bears a threatening device which potentially will destroy or damage the ship, and the act of seizing the ship by force. member states, hereby obliged to prosecute or extradite the offenders to pursue justice. another instrument that contained similar provision is the 1988 protocol for the suppression of unlawful acts against the safety of fixed platform located on the continental shelf (1988 sua protocol), which regulate the prevention against the act relating to the safety of fixed platform lies on the continental shelf. the enactment of the 2005 sua convention of unlawful acts against the safety of maritime navigation aims to strengthen the previous protocol, namely the 1988 sua protocol, in its commitment to provide an 33 united nations office on drugs and crime, "the international legal framework against chemical, biological, radiological and nuclear terrorism", counter-terrorism legal training curriculum, (2016), 34. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 37 adequate response to prevent the risk to maritime navigation conducted by an international terrorist. (2) the 2005 sua convention regulates the use of a ship in preventing the act from causing serious damage or even death, the transfer of terrorism in evading the prosecution, and the unlawful transfer of weapons through maritime routes that potentially caused mass destruction. the sua convention is considered one of the first initiators that regulate precisely the interdiction and prevention of biological weapons for such terrorist acts. however, this instrument solely regulates bioterrorism in ships and any acts that endanger maritime navigation. f. convention on the suppression of unlawful acts relating to international civil aviation (2010 beijing convention) shortly after the occurrence of the terrorist attack in the united states (9/11 attack), the council international civil aviation organization (icao)34 enacted a33-1 resolution, adopted in october 2001. the main point of this resolution aims to address existing or any advance threats to civil aviation, specifically in reviewing the sufficiency of present aviation conventions concerning preventing, eradicating, and combating any terrorism acts in civil aviation and reinforcing aviation security. the aforementioned resolution and supporting recommendation from the ministerial high-level conference on aviation safety held in february 2002, therefore put into action by icao representatives' approval to review the present instrument of aviation security agenda. moreover, the beijing convention has stipulated advance violations attached to cbrn weapons and radioactive substances, which was not contained in the previous convention regarding aviation instruments. icao resolution, therefore, become the first direct instrument that outlined the prevention and eradication of cbrn terrorism act in the aviation realm. c. conclusion according to the explanation above, it shows that international instruments, unfortunately, have not regulated the eradication of bioterrorism thoroughly. however, about 6 (six) instruments outlined the prohibition of biological weapons utility for conducting a terrorist attack. these instruments, namely the convention on the prohibition of the development, production and stockpiling of bacteriological [biological] and toxin weapons and on their destruction 1972 (biological weapon convention 1972); international convention for the suppression of terrorist bombings (terrorist bombing convention) 1997; international convention for the suppression of the financing of terrorism (1999); united nations security council resolution 1540 (2004); protocol to the convention for the suppression of unlawful acts against the safety of maritime navigation (2005 sua convention); convention on the suppression of unlawful acts relating to international civil aviation (2010 beijing convention). however, these existing instruments are deemed insufficient to combat the concerning issue of bioterrorism. to date, there has been no specific convention that regulates the issue of bioterrorism comprehensively. therefore, as the peacekeeper of states, the united nations (un) shall immediately establish stronger regulations to eradicate terrorism in any manner and prevent relating acts to protect the world's security. references a. journal and article 34 icao is a special un agency; states established it in 1944 to manage the international civil aviation convention (chicago convention). icao has 193 state parties. accessed from https://www.icao.int/abouticao/pages/default.aspx on april 28, 2020, at 19:23. bioterrorism: the development and its regulations… yaksa elyasa 38 asada, masahiko. “security council resolution 1540 to combat wmd terrorism: effectiveness and legitimacy in international legislation”, journal of conflict & security law 13, no. 3, 2008: 303-332, doi: 10.1093/jcsl/krp002. aziz, isna rasdianah., saputra, andika. “bioterrorism: the role of genetics and molecular biology”, prosiding seminar nasional biology for life 3, no. 1, 2017: 63-69, 63, doi: 10.24252/psb.v3i1.5587. barras, v., g. greub. “history of biological warfare and bioterrorism”, journal of clinical and microbiology infection 20, no. 06, 2014: 497-502, doi: 10.1111/1469-0691.12706. besides, revaz. “weapons of mass destruction and international terrorism”, georgia: final project report, 2007: 1-36 carus, w. seth. "a century of biological-weapons programs (1915–2015): reviewing the evidence", the nonproliferation review special section: nuclear asia 24, no. 1-2, 2017: 129-153, doi: 10.1080/10736700.2017.1385765. carus, w. seth. “the threat of bioterrorism”, national defense university institute for national strategic studies 127, 1997: 1-4. dagen, heather a. “bioterrorism: perfectly legal”, catholic university law review 49, no. 2, 2002: 535-573. fidler, david p. "bioterrorism, public health, and international law", chicago journal of international law 3, no. 1, 2002: 7-26. fiedler, beth ann., nikolaenko, dmitry. "investigating covid-19: recurring methodological problems in the study of infectious disease", environmental epidemiology 14, no. 2 (2020): 4-12. funk, cameron. "america's state of readiness against bioterrorism", pepperdine policy review 10, no. 1, 2018: 1-20. goril, saira., tomar, anjani singh. "bioterrorism & biodefense: an environmental and public health preparedness", rupkatha journal on interdisciplinary studies in humanities 12, no. 1, 2020: 1-15, doi: 10.21659/rupkatha.v12n2.13. janik, edyta. et al. “biological toxins as the potential tools for bioterrorism”, international journal of molecular science 20, no. 5, 2019: 1181, doi: 10.3390/ijms20051181. merriam, eric. “the international legal regime affecting bioterrorism prevention”, national security law journal 3, no. 1, 2014: 1-46. pal, mahendra. et al., "an overview on biological weapons and bioterrorism", american journal of biomedical research 5, no. 2, 2017: 24-34, doi: 10.12691/ajbr-5-2-2. sharma, divashree. et al., "bioterrorism: law enforcement, public health & role of oral and maxillofacial surgeon in emergency preparedness", journal of oral and maxillofacial surgery 15, no. 2, 2016: 137143, doi: 10.1007/s12663-015-0834-x. suhayati, monika. “undang-undang pencegahan dan pemberantasan tindak pidana pendanaan terorisme dari perspektif hak asasi manusia”, jurnal negara hukum 4, no. 2, 2013: 231-249, doi: 10.22212/jnh.v4i2.206. united nations office on drugs and crime, "the international legal framework against chemical, biological, radiological and nuclear terrorism", counter-terrorism legal training curriculum, 2016. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 39 yakubu, dennis d., paul, daniel a. "biological weapons a global threat: a sustainable approach for early identification", african journal of environment and natural science research 2, no. 2, 2019: 6-11 b. book clutterbuck, richard. terrorism in an unstable world. london: routledge, 2006. farida, nur. me and global environment. jakarta: grasindo, 2009. gottfried, robert s. the black death: natural and human disaster in medieval europe. new york: the free press, 1985. hikam, muhammad a.s. deradikalisasi: peran masyarakat sipil indonesia membendung radikalisme. jakarta: kompas media nusantara, 2016. michael, george. lone wolf terror and the rise of leaderless resistance. nashville: venderbilt university press, 2012. s, adjie. terorisme. jakarta: pustaka sinar harapan, 2005. c. internet https://www.nytimes.com/1972/01/19/archives/2-youths-charged-with-plot-to-poison-waterof-chicago.html accessed on december 16, 2019. https://independensi.com/2020/03/24/covid-19-perang-biologi-berlakukan-darurat-militer/ accessed on march 27, 2020. bioterrorism: the development and its regulations… yaksa elyasa 40 51 south china sea: conflict, challenge, and solution winanda kusuma1, a. cery kurnia2, rio armanda agustian3 1 faculty of law, universitas bangka belitung, indonesia, e-mail: kusuma.winanda@gmail.com 2 faculty of law, universitas bangka belitung, indonesia, e-mail: andicery@gmail.com 3 faculty of law, universitas bangka belitung, indonesia, e-mail: rioarmanda.agustian@yahoo.com submitted: march 4, 2021; reviewed: march 8, 2021; accepted: march 9, 2021 article info abstract keywords: the south china sea, international law of sea, unclos 1982, delimitation. doi: 10.25041/lajil.v3i1.2266 the south china sea is a strategic marine area in terms of natural resource potential and international trade routes. for decades, territorial disputes have occurred with peaceful solutions from regional organizations, international courts, and even contributions from outside the claimant state. this paper examines the efforts made to contribute to a peaceful solution to disputed states of claims. the achievement of a peaceful solution, the shortcomings of the peaceful solution to the proposed peaceful solution's chronology. this research is normative juridical research that is historical descriptive in nature. the south china sea dispute arises from china's actions regarding its map of its maritime territories that do not comply with international maritime law. regulations regarding the method of drawing deep-sea boundaries under international maritime law are violated in this act. negotiation efforts in finding conflict solutions in regional organizations, state leadership meetings, informal meetings of claim state policymakers, and efforts to file claims by the philippines at permanent court arbitration have been carried out. china's action that does not recognize the philippine lawsuit decision poses a challenge to international maritime law and its member countries. a complete peaceful solution must be sought immediately when softlaw and hard law must comply with the claiming state. a. introduction international law is known as the law that regulates legal subjects across countries. at first international law was only interpreted as regulating the behavior and relations of several countries in international relations, which became increasingly complex. it is making the above meaning and understanding broadened so that international law regulates international organizations' relevant systematics and behaviour by making certain agreed boundaries and companies that have multinational impacts. individual problems are arranged in it. international volume 3 issue 1, 2021: pp. 51-62. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:kusuma.winanda@gmail.com mailto:andicery@gmail.com mailto:rioarmanda.agustian@yahoo.com south china sea: conflict, challenge and solution winanda k, a. cery, rio a 52 law governs law where the main subject is the nation-state. international law is also used to show customs and legal rules that apply initially regarding the relationship between kings in a particular kingdom or nation.1 laws between developing nation-states show the complexity of principles and principles to regulate the relationship between community members, nations, or states and all the complexities to achieve world order. the territory of a country besides we know the air and land as well as the ocean. however, the problem of maritime affairs or sea territory is not owned by every country. only certain countries have sea territories, namely countries where the land area borders the sea. the sea is sometimes the boundary of a country with another country with a boundary point determined through bilateral or multilateral means. it means that it is the limit of a country's power as far as the outer line of its territorial boundaries. in the development of international law, the limit of power, which is the boundary of a country's territory, is very closely held, violations of the territory of a country can have fatal consequences and can even lead to relationship breakdown, and if it drags on, war will result. territorial boundaries are demanded to maintain good regional security for each country, and border treaties that are created need to be obeyed to harm other countries' interests. the determination of the territory's boundaries, which includes the sea in its manufacture, always considers the form of consequences and other considerations so that all interests are equally running. for countries whose territory borders another country's territory, the boundaries cannot be determined unilaterally but must pay attention to their history and the agreements made. based on international constitutional practice experience, if you only pay attention to history, there are still many problems. the regulation of maritime boundaries has also been regulated in the 1982 united nations convention on law of the sea, which in this paper will be called international maritime law. the regulation of sea areas in international maritime law is regulated by drawing baselines with the coastal state's geographical conditions.2 international law is based on free will and the consent of several or all states. this is to dominate the state's common interests or other international legal subjects who claim to be bound in it. by this definition, in general, international law is a part of the law that regulates the activities of international entities. the condition of the asia pacific ocean region as a large sea area is facing conflict conditions. the south china sea, the fulcrum of geopolitics in the asia pacific region, is being discussed at the international level because it has sparked conflicts between several major asian countries and several asean members.3 disputed issues regarding the claims of maritime territories between countries. the dispute influences the security conditions of the asian region, especially asean, even a show of military power has been shown by conflicting countries. the intersection of sovereignty claims and territorial jurisdiction in the south china sea region involves six countries: china, taiwan, the philippines, vietnam, malaysia, and brunei darussalam.4the characteristics of the conflict in this region are due to each country's interests towards the south china sea region with the narrative of arguments and the country's legal basis. as one of the countries bordering the south china sea, indonesia states that it is not directly involved in the conflict over territories in the south china sea. indonesia is a member of southeast asia and a strategic value for indonesia, which has several potentials for our 1 hasanuddin hasim, “hubungan hukum internasional dan hukum nasional, perspektif teori monosime dan teori dualisme”, jurnal perbandingan mahzab 1, no. 2 (2019): 166-179, 167, doi: 10.24252/mh.v1i2.10623 2 see article 48 unclos 1982 3 ismet ismaya saleh, “implementasi geostratego nasional menghadapi perkembanga regional unutk melindungi politk luar negeri dalam rangka ketahana nasional”, individual worksheet, lembaga ketahanan nasional, (2014), p.18 4 asep setiawan, “keamanan maritime di laut cina selatan: tinjauan atas analisa barry buzan”, jurnal keamanan nasional 3, no. 1 (2017): 33-62, 34, doi: 10.31599/jkn.v3i1.8. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 53 country's security in regionality in asean membership. the influence of regional stability within asean is threatened because of disputes in the south china sea region, so it is correlated with the mismatch of asean security credibility, affecting indonesia in particular. data from the international hydrographic bureau, the south china sea is said to be the waters extending from the southwest to the northeast, bordering on the south with southern latitude between sumatra and kalimantan and in the north bordering the taiwan strait from the northern tip of taiwan to the coast of fukien, china. the water area covers about 4,000,000 km2.5 the sea area consists of hundreds of small surrounding islands, rocky reefs, and small interisland straits. according to information from various seismic surveys of oil and gas reserves based on these data, the vast area and various geographical contours are abundant, especially in china's conflict areas and spratly and paracel's islands. information regarding the wealth of natural resources in the south china sea, several aggressive actions have been carried out by countries directly adjacent to this region to legitimize any territories claimed for their ownership. these claims refer to historical factors, economic calculations, and geostrategic considerations of the countries involved. the territorial dispute in the south china sea was preceded by china's claim in 1974 to release a map detailing its country's sovereignty claims, including the spratly, paracels, and pratas islands.6 that same year china maintained a military presence in the islands. of course, this claim immediately received a response from countries whose borders intersect in the south china sea, especially asean member countries. china's claims over the south china sea are considered part of their sea, which overlap with other countries' sovereignty, especially asean countries. although on a small scale, even using the military in a settlement pattern could endanger world peace. the huge potential of natural resources around the south china sea has made friction sharper between the warring countries. it is necessary to make an inventory of what conflicts exist around the south china sea concerning the countries and the resolution patterns that best resolve them. according to international maritime law, problems related to border conflicts such as what happened in the south china sea and how to handle and resolve south china sea conflicts. b. discussion 1. south china sea conflict countries want the widening of the territorial sea from an economic point of view. the coastal states feel the need to expand their territorial seas to control and reserve the marine resources to meet their own people's needs. from the point of view of national defence and security, the widening of the territorial sea is also necessary given the development of sea traffic and various types of vessels with all kinds of impacts on the coastal state. there are two doctrines for determining this problem, namely: a. the doctrine right reserved this doctrine is a doctrine defended in the past, which states that the territorial sea is an integral part of its territory. according to this doctrine, the coastal state has full power or full dominium over its territorial seas, which can be made property due to certain sea sources' possible exhaustion. if accepted, this doctrine will have several consequences:7 5 hasjim djalal, “potential conflict in the south china sea: in search of cooperation”, indonesian quarterly 18, no. 2 (1990): 364-375, 365. 6 try satria indrawan putra, et.al, “reklamasi pulau republik rakyat tiongkok di laut cina selatan: suatu analisa terhadap penambahan wilayah dan dampak terhadap jalur pelayaran internasinal”, diponegora law review 5, no. 2 (2016): 1-14, 2. 7 dina sunyowati dan enny narwati, hukum laut (surabaya: airlangga university press, first edition 2013), 46. south china sea: conflict, challenge and solution winanda k, a. cery, rio a 54 1) the territorial sea can be closed and opened at will by the coastal state; 2) can prohibit the entry of foreign ships; 3) state monopoly for shipping and fishing. at present, this doctrine has been abandoned because it has caused many protests and is also not following the international community's spirit, especially if the dominion theory means the theory of property rights. in contrast, in reality, this is not the case. b. the doctrine of sovereignty the classical doctrine is still used today in the practice of international law. this concept focuses on the coastal state not having full dominance over its sea areas but only the territorial sea's imperial concept. geneva convention 1958 article 1 in that convention, the term that is always used, is sovereignty for everything related to the coastal state's rights to the sea in its territory. so what is accepted now by the international community is the term sovereignty. international law of the sea is consensus agreed on in the 1982 convention on the sea law.8 1) can form an archipelago state, guaranteeing the interests of the country. 2) provide the opportunity for the coastal state to treat the expansion of the sea area. 3) extending the responsibility of the coastal state to the oceans. 4) the reduction of the open sea area to become a territorial sea. 5) supporting the preservation of the marine environment, which the national laws of a country must protect. 6) reducing the freedoms that previously existed for managers of the oceans. the south china sea dispute is closely related to china's interest in expanding its territory with a unilateral map. it cannot be separated from economic, strategic, and political interests. achieving a fair solution in the delimitation of maritime boundaries requires consideration related to political, strategic, and historical factors.9 the factors above are problems that conflicted countries must resolve to defend their rights in the south china sea region. china's claim through the map of the nine dashes 1974 becomes the basis and, at the same time, is a unilateral implication. the claim is related to the sovereign rights over the potential wealth of the sea historically and geographically. historically, the chinese state narrated that the territory had been controlled effectively and utilized by the previous chinese, so the present chinese state-controlled a basis as a successor. the south china sea parties' disputed areas are warm on two main islands, namely the spratly and paracels. many conflicted countries feel entitled and demand ownership of the spratly islands, such as brunei, china, malaysia, the philippines, japan, taiwan, and vietnam. economic factors because the south china sea area is rich in oil, natural gas, and fisheries. the vast area of the south china sea also consists of islands scattered so far from each other. it has been described above that the island dispute that has attracted much attention is the spratly and paracel islands. the land area of the island also has the value of international legal conflicts, the requirements for land features to be used as the basis for delimitation of areas are taken into account in international maritime law such as rocks, coral reefs, sand, and several others that are under the sea, even though the island's land standards are not suitable for farming. there is no historical record of these islands being inhabited because they cannot support human life and activities. however, in 1968 there were discovered petroleum reserves dramatically increased the south china sea value. the spratly and paracel islands' potential oil reserves are estimated to be up to 105 billion barrels and throughout the south china sea as much as 213 8 p. joko subagyo, hukum laut indonesia (jakarta: rineka cipta, 2013), 36. 9 i made andi arsana, batas maritim antarnegara (yogyakarta gadjah mada university press, first edition, 2007), 73. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 55 billion barrels.10 even though the evidence of these oil reserves' existence is not yet strong, the estimated potential for these oil reserves can certainly be a factor in china's interest and countries in the region towards this region. hydrocarbon resources are also a special attraction. according to estimates by the united states geological survey (usgs), 60-70% of hydrocarbons in the region are natural gas. meanwhile, the use of natural gas resources is projected to increase by 5% per year for the next two decades. the amount is estimated at 20 trillion cubic feet (tcf) per year, faster than other fuels.11 the interests of chinese hegemony in the south china sea area with the nine-dotted line map claim issued in 1974 were strategic to strengthen their global power in asia. the south china sea as a historical route in shipping has always meant an important international shipping route that china must control. however, the potential for territorial overlap with other countries follows the 1982 international law of the sea. the south china sea, as the world's main traffic, passed by supertankers sailing from the asian continent through the strait of malacca to europe. supertankers sailing through the malacca straits and the southwestern part of the south china sea even exceed the heavy traffic of the suez canal and the panama canal as bustling routes in world economic shipping in the south china sea to asian and eastern european countries through the malacca strait will go through the sea area of the spratly islands. shipping through disputed areas is important because it is dominated by major economic sources such as crude oil, natural gas, other natural resources, coal, iron ore, and even tin. the potential for environmentally friendly fuel electricity is increasing. increased control over the south china sea will strengthen the country's position in terms of the maritime regime, considering that it is a central area of maritime activities. the sovereignty aspect due to the south china sea issue concerns territorial claims. losing territories in defending their areas will cause international and domestic legal problems due to the importance of these conflicting countries escalating. it is necessary to find peaceful solutions to prevent potential warfare from defending their territories under their respective interpretations and views for the sake of state sovereignty. the south china sea region also has an important role in military strategy in manoeuvring its warships to the free sea regime's nuclear submarines. china's presence in this region can create an eez if it is recognized as territorial in the vast 1974 marine map of the state of china and wants to control the oceans to achieve a more excellent power projection of the pacific ocean and the indian ocean. currently, the chinese military's main mission is to strengthen strength with international law issues that are in line with the south china sea region but are not only about territorial disputes. the actions of the chinese state in the south china sea conflict are carrying out reclamation activities. this is one of the arguments of chinese law because there are no specific rules or articles in the 1982 law of the sea convention governing reclamation.12 the permanent court arbitration (pca) decision dated 12 july 2016 ruled that this feature was not used as a reference for measuring marine areas. the features that can generate rights to a maritime zone, namely the existence of objective capacity, good natural conditions, population by the human community, which lives permanently in the features concerned, and economic activities that do not depend on outside parties.13 10 simela victor muhammad, “kepentingan china dan posisi asean dalam sengketa laut china selatan”, info singkat hubungan internasional 4, no. 8, (2012): 5-8, 6. 11 ibid 12try satria indrawan putra, et.al, op.cit., 4. 13 ana fatmawati dan elsa aprina, “keabsahan alasan penolakan republik rakyat tiongkok terhadap putusan permanent court arbitration atas sengketa klaim wilayah laut cina selatan antara philipina dan republik rakyat tiongkok berdasarkan hukum internasional”, veritas et justitia 5, no. 1, (2019): 105-129, 115, doi: 10.25123/vej.3289. south china sea: conflict, challenge and solution winanda k, a. cery, rio a 56 international law of the sea regulates the substance of the maritime regime's norms concerning the withdrawal of maritime boundaries. the drawing of maritime boundaries is logically correlated with the granting and utilization of land rights of all existing marine resources, which have also been regulated in the 1982 international convention on the law of the sea. when a coastal state with a land area borders the sea, the land area becomes the starting line for delineation so that the sea area becomes part of it. inseparable from a country, but of course not by going against international law of the sea. coastal states under international maritime law enjoy exclusive economic zone (eez) territorial regimes calculated to be 200 miles from the baseline.14 the coastal state exclusively under international maritime law has the right to explore and exploit marine potential in the eez regime. the eez regime in international maritime law is a new regime from the previous international maritime law. this has a positive impact on the legal position of the coastal state. the south china sea dispute is focused on two islands which are the source of disputes between several countries that want the south china sea area, namely the spratly islands and paracel. the sea area and the spratly and paracel islands' territory are archipelagic areas overlapping claims by some countries. there is a series of islands, uninhabited islands, atolls, and corals around the water area. several islands in the south china sea area focus on attraction for countries wanting ownership of this area because of their potential natural resources and geographical potential. china still maintains a unilateral position to have the largest share of the south china sea territory, with hundreds of kilometres to the south and east of the hainan province. the conflict between china and the philippines in what the philippines calls the west philippine sea, where there are islands that european countries call the spratly islands, but china claims the nansha islands where there are the scarborough, panatag, bajo de masinloc, or karburo reefs which china calls the huangyan islands.15 the philippines' action on sovereignty in the scarborough reef area was building a tower on the reef to not be negated by sea abrasion. as a country in conflict, vietnam also claims the spratly and paracels' territories with historical claims from the kingdom that existed in vietnam to the united states colonial period's succession in the 1951 san francisco peace treaty. the malaysian state has a relatively weak claim because it is based on a marine map where the spratly group's continental shelf and the sabah mainland are quite close. a one-sided claim for bargaining power is within the country's borders in territorial delimitation negotiations. brunei darussalam is involved in the conflict, which cannot be separated from malaysia's claim. the eez continental shelf of malaysia's claim will overlap with the eez and the continental shelf from british succession to louise reef island. however, the potential for conflict is not too significant. the escalation of the south china sea dispute has received mixed responses from conflicting countries. the philippines, for example, filed a pca lawsuit over a congested area dispute in 2013 and a decision in 2016. the philippines in dispute only wants spratly to be 160 km from the land area of the philippines' outer islands as a baseline, far from the baseline boundary according to the 1982 international maritime law convention from the mainland. china is about 800 km from the nearest mainland area of china. the philippines, based on the 1982 law of the sea convention, is the eez a maximum of 200 nautical miles when it is converted about 321 km from the territorial sea baseline. vietnam opposes the claim on china's map by carrying out a diplomatic protest action by claiming not to recognize china's claims and never asserting its sovereignty in the two islands. this puts vietnam in line with the 1982 international law of the sea regarding the paracel and spratly islands' status in its territory. as 14 see article 57 unclos 1982 15 martin sieff, “sengketa nama laut china selatan atas kepulauan spartly dan paracel ungkap konflik yang lebih dalam”, asia pacific defense forum, 13 september 2012. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 57 a sovereign state, vietnam has a territory under the principles of international law. it has documents proving that it has been in power uti possidettis in the paracel and spratly since the 17th century historically. 2. handling the south china sea dispute settlement a. negotiated state claims in south china sea disputes the south china sea dispute is very long and complicated. most of the countries in conflict are members of the asean regional organization, where asean aims to maintain regional peace. achieving these goals is carried out jointly between member countries. the asean's role and commitment must be positioned as a conflict reducer, especially in the south china sea region for its members and the asian region. in 1976 an asean summit was held in bali to be ratified by the treaty of amity in southeast asia (tac), ratified by all asean countries. a peaceful dispute resolution mechanism was also adopted in the agreement. underlies the tac's birth, the matter that underlies the difference or disagreement of interests among members that have started to surface must be regulated rationally, effectively, and with adequate procedures to avoid impacts that will endanger cooperation between member countries.16 this international agreement must be reminded and enforced for every conflicted country when conflict tensions escalate to seek a peaceful settlement, and respect for asean's goals remains consistently upheld. opportunities for resolving regional security problems must be sought and exploited because they will affect all members. all interests must be accommodated by sticking to international legal channels, not just foreign policy. trust in fellow asean members should never be reduced by establishing diplomatic communication and the role of states that are not part of the conflict more actively in reducing responses or actions against international law. the south china sea issue has almost always been the subject of asean leaders' meetings, which does not mean that it violates respect for the country's sovereignty but looks for even offers a comprehensive, peaceful solution in the middle of a meeting of leaders to determine state policies. the further development of asean sees the dynamics of regional security issues that are increasingly complex. it is necessary to strengthen communication to build trust among members of the region. the asean regional forum (arf) was formed in 1993. this forum aims to encourage asia pacific countries to discuss common security interests so that all parties can discuss regional security issues directly and openly.17 awareness of complex and multilateral regional security disputes moves from simple or traditional territorial disputes to regional territorial disputes requiring trans-regional inter-state settlement mechanisms. concrete actions by conflicting and regional countries in resolving disputes, especially the delimitation claims of the south china sea peacefully, include: 1) managing potential conflict in the south china sea indonesia, which is not a country that has a claim to the south china sea dispute in the 1990s, initiated the managing potential conflict in the south china sea. this activity is indeed not representative of the state but is attended by individuals who play a role in building a peaceful south china sea settlement. this activity avoids juridical problems and even questions the sovereignty in disputed areas, but trying to establish and maintain cooperation to find 16 endah rantau itasari, “memaksimalkan peran treaty of amity and cooperation southeast asia 1976 (tac) dalam penyelesaian sengketa di asean”, jurnal komunikasi hukum 1, no. 1 (2015): 14-23, 20, doi: 10.23887/jkh.v1i1.5010. 17 m. ali busthomi, “mekanisme asean regional forum dalam menangani isu terorisme regional, jurnal review politik”, jurnal review politik 2, no. 1 (2012): 80 – 98, 83. south china sea: conflict, challenge and solution winanda k, a. cery, rio a 58 peaceful solutions has not complied with its strategic policies. the fundamental result of this activity is the asean declaration's planned activities on the south china sea. 2) asean declaration on the south china sea after the managing potential conflict in the south china sea, it was agreed that activities that touch more on a peaceful solution need to hold a forum to discuss strategic policies. this activity was held in manila in 1992, resulting from the managing potential conflict in the south china se, which was held in bandung. this declaration succeeded in agreeing on the code of conduct (coc) formula. although it is not yet binding, the coc principles are steps to build confidence that the south china sea dispute can be resolved peacefully without military intervention. the coc substance emphasizes direct multilateral solutions such as strengthening cooperation, navigation, and communication around shipping lanes that must be maintained for the whole world, protecting marine environmental ecosystems and transnational crimes around the south china sea region. since the beginning, china has always been unsupportive of multilateral solutions, preferring to support a bilateral pattern, making the coc have challenges in its implementation, especially when faced with china. finally, china agreed to negotiate multilaterally but based on the 1982 international sea law, which was more binding. 3) declaration conduct of parties in the south china sea the chinese state was so massive in carrying out activities around the south china sea region in the 2000s that it resulted in an escalation of conflict between claimants. china was initially reluctant to negotiate multilaterally until finally, it agreed to negotiate together to find a peaceful solution to sign the declaration between asean and china. it needs to be reaffirmed that this agreement consists of asean as a regional organization with china, not a claimant state. asean and china signed this decree in vietnam in 2002 to avoid military conflict, emphasize peaceful settlement, fulfil peaceful passage rights, and mutual restraint over the south china sea territorial conflict. the requirements put forward by china are guidelines in forming a code of conduct which will prioritize based on the 1982 international law of the sea. 4) code of conduct the substantiation of the declaration in manila agreed on asean and china to negotiate a coc which was then discussed intensively at the 21st asean summit in cambodia. changes in the dynamics of china's choice of action with the good neighbour policy put forward by the chinese president. the coc agreement establishes cooperation in disputed areas without reducing the territorial claims in dispute. china also previously agreed that the coc finally discussed the tac, which asean countries had already agreed upon. asean's efforts are very intensive in finding a solution to the south china sea conflict, either independently or by asean as a regional organization. a draft of a peaceful solution has also been proposed by the claimant state to be used as a reference or further discussion in the state leaders' forums. the south china sea dispute in the 2000s changed dynamics because the development of china's hegemony was extensive. china's economic influence on claimed countries in relations between countries made the escalation temporarily suppressed. the change in the way china's settlement was initially intended was only so that the method of negotiating the south china sea conflict was put forward through bilateral forums. the chinese state's recent negotiation method changes open opportunities and actively participates in finding opportunities and peaceful solutions for the claimants to negotiate and conduct multilateral negotiations jointly. this change makes it easier for asean as a regional organization and a country claiming asean countries to seek peaceful solutions together and formulate more concrete and implementable solutions that all claimants accept. the solutions lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 59 offered by asean and the claimants of asean members are still not solid in one agreement. this is the weakness of the multilateral negotiations, which are the last resort chosen by the claimants. this solution benefits china even though it has favoured multilateral negotiations but has remained open from bilateral negotiations. 3. international maritime law enforcement efforts multilateral efforts that have not been implemented effectively at its peak, the philippines filed a lawsuit over china's map claim to permanent court arbitration (pca) in 2013. this lawsuit filed unilaterally is not an agreement between china and the philippines. however, the pca considers it unnecessary because it filed the legality of the map submitted by china as a special agreement and under appendix vii article 9 of the 1982 international law of the sea. the philippines is the first claimant country to seek a settlement through the courts. the lawsuit over recognizing the philippines' sovereign territory as china's sovereign territory against international maritime law. regulations regarding maritime boundaries have been regulated and agreed upon with the philippines and china as member states of international maritime law. the pca decision generates jurisprudence in the south china sea conflict. this historical claim is one of the bases for recognizing sovereign territory in the south china sea region. according to the pca, fishing by chinese fishermen on historical claims is not done exclusively, and there is no prohibition on other countries to catch fish.18 the pca states that mischief reef, second thomas shoal, and reedbank will sink at high tide, and therefore, this feature is part of the philippines' sovereign rights.19 the south china sea conflict between claimants in the surrounding area is still not over, especially disputes outside the asean regional region. increased because negar a claim around the region, each claiming their territory. the claims state's actions could escalate tensions between japan, china, and taiwan. as described above, the south china sea area is strategic in marine traffic and rich in natural resources. that makes all countries claim each other's territories through international maritime law arguments because there is tremendous economic potential in the region. some claim states are the island and coastal states. an archipelagic state according to 1982 international maritime law. 1982 international law of the sea defines an archipelago as a state consisting entirely of one or more islands and can include other islands.20 the archipelago itself is a natural island group inseparable from a geographical, economic, political, and historical unity. a coastal state is a country that has a sea area as a state delimitation. another differentiation between archipelagic countries and coastal states can be seen from the method of determining baselines, coastal states based on article 7 of the 1982 international law of the sea, as follows "in places where the coastline protrudes deep and bends inward or if there is a series of islands along the nearby coast, the method of drawing a straight baseline connecting the appropriate points can be used in drawing baselines from which the width of the territorial sea is measured".21 archipelagic states that underlie the maritime boundaries refer to article 47 point 2 regulating the length of the island country baselines connecting the outer points of islands and the outermost dry reefs not to exceed 100 nautical miles and a maximum of 125 nautical miles except for 3% of the number of baselines around each archipelago.22 in the 1982 international law of the sea regulations, the author tries to connect with chinese claims based on historical claims. we already know that chinese civilization is ancient and could access the oceans thousands of years ago either as fishermen or traders. it should be 18 ana fatwati, op. cit., 11. 19 ibid. 20 article 46 unclos 1982 21 article 7 unclos 1982. 22 article 47 unclos 1982. south china sea: conflict, challenge and solution winanda k, a. cery, rio a 60 noted that the historical basis of claim recognition has also been regulated as an archipelago. in the present civilization, china has never claimed to be an archipelago. claimed states are all coastal states enjoying territorial sea regimes to exclusive economic zones. the arrangement of the eez regime shall not be more than 200 miles from the starting line.23 it has been explained above mainland china's distance to the disputed territory of more than 200 miles. china's current economic growth condition and increasing military capability are the most superior country in asia, especially in the dispute over the south china sea area's boundaries. the dispute worries all countries if the issue can not be resolved peacefully. china, which is the method of determining the country's territory is not right and violates international maritime law according to the 2016 pca decision, will be able to destroy respect for 1982 international law of the sea. 4. challenges of south china sea conflict in international law the claiming state, an island nation, will increasingly force international maritime law enforcement. the enforcement of international maritime law must be under the rules agreed upon by the claiming state and a member state of the 1982 international maritime law. although the south china sea dispute is china facing a claimant state, some territories exclude china from the dispute. the growth and improvement of china's economic and military capabilities in recent decades have made china increasingly active in activities or actions in disputed areas, such as carrying out reclamation around the spratly and paracel islands and conducting military exercises, and deploying aircraft carriers and submarines. it is important for the south china sea region's security that the united states participates in finding a peaceful solution to disputes in the south china sea region. the united states' diplomatic step is taken to ensure that the country claims it has not violated international law, such as weapons. this step is carried out through diplomacy, but, unfortunately, the united states has also participated in peaceful efforts by using military force. the united states seeks to strengthen its military presence in the asia pacific region. another military effort is to locate us mariners in military bases around conflict areas. claiming countries continue to contribute to a peaceful solution following the 1982 international law of the sea to end disputes peacefully. the state's participation outside of the claim also does not rule out the possibility because it is more objective in formulating a peaceful solution. state participation outside of claims is expected to end conflicts following the international law of the sea seriously. the role of regional organizations continues to be offered. this makes it easier for claim states to sit together to handle conflicts. other relevant international organizations' roles cannot but have a role before these disputes grow increasingly complicated and difficult to resolve. c. conclusion conflict south sea china region with the potential sources of nature's power is great and track important trade internationally. region positioned due to track crossthe main northwest world is very crowded, bypassed by ships from various countries. from a military point of view, this region is significant to maintain and enhance national security. countries with a base on the claim area each retain sea of china southern ownership of the factors above. china, with the approach historically, makes things such as basic claims of sea of china southern. malaysia, the philippines, brunei also have an approach to the base that is strong with the regime of the law of sea international 1982 regarding zoning regime region sea. differences in approach to the base that is different between china with several countries making conflicts that drag on until now. 23 article 57 unclos 1982. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 61 conflict south sea china by state claims of consciousness to maintain peace world contribute to help resolve the problems mentioned. many solutions of peace that is offered by fellow asean countries or solution unilateral option settlement ranging from asean managing potential conflict in the south china sea, the declaration on the south china sea, the declaration of conduct of parties in the south china sea code of conduct until the last efforts to filing a lawsuit philippines to the permanent court arbitration is unilateral. state participation outside of claims also seeks to find solutions. until the time is not also settled, the matter is full, but an attempt to show faith either resolve the problem it continues cultivated the parties to solve is not more complicated. the pca decision as the south china sea conflict's latest legal product states that china's territorial claim to sea territory from the nine-dashed map is invalid. it is inconsistent with international maritime law in the principle of effectiveness or uti possidetis. references a. journal busthomi, m. ali “mekanisme asean regional forum dalam menangani isu terorisme regional, jurnal review politik”, jurnal review politik 2, no. 1, 2012: 80 – 98. djalal, hasjim. "potential conflict in the south china sea: in search of cooperation", indonesian quarterly 18, no. 2, 1990: 364-375. fatmawati, ana., aprina, elsa. “keabsahan alasan penolakan republik rakyat tiongkok terhadap putusan permanent court arbitration atas sengketa klaim wilayah laut cina selatan antara philipina dan republik rakyat tiongkok berdasarkan hukum internasional”, veritas et justitia 5, no. 1, 2019: 105-129, doi: 10.25123/vej.3289. hasim, hasanuddin. “hubungan hukum internasional dan hukum nasional, perspektif teori monosime dan teori dualisme”, jurnal perbandingan mahzab 1, no. 2, 2019: 166-179, doi: 10.24252/mh.v1i2.10623. ismet ismaya saleh, “implementasi geostratego nasional menghadapi perkembanga regional unutk melindungi politk luar negeri dalam rangka ketahana nasional”, individual worksheet, lembaga ketahanan nasional, 2014. itasari, endah rantau. “memaksimalkan peran treaty of amity and cooperation southeast asia 1976 (tac) dalam penyelesaian sengketa di asean”, jurnal komunikasi hukum 1, no. 1, 2015: 14-23, doi: 10.23887/jkh.v1i1.5010. martin sieff, “sengketa nama laut china selatan atas kepulauan spartly dan paracel ungkap konflik yang lebih dalam”, asia pacific defense forum, 13 september 2012. muhammad, simela victor. “kepentingan china dan posisi asean dalam sengketa laut china selatan”, info singkat hubungan internasional 4, no. 8, 2012: 5-8. putra, try satria indrawan., et.al. “reklamasi pulau republik rakyat tiongkok di laut cina selatan: suatu analisa terhadap penambahan wilayah dan dampak terhadap jalur pelayaran internasinal”, diponegora law review 5, no. 2, 2016: 1-14. setiawan, asep. “keamanan maritime di laut cina selatan: tinjauan atas analisa barry buzan”, jurnal keamanan nasional 3, no. 1, 2017: 33-62, doi: 10.31599/jkn.v3i1.8. south china sea: conflict, challenge and solution winanda k, a. cery, rio a 62 b. book arsana, i made andi. batas maritim antarnegara. yogyakarta: gadjah mada university press, 2007. sodik, dikdid mohammad. hukum laut internasional dan pengaturan di indonesia. bandung: t. refika aditama, 2011. subagyo, p. joko. hukum laut indonesia. jakarta: rineka cipta, 2013. sunyowati, dina., narwati, enny. hukum laut. surabaya: airlangga university press, 2013. c. regulations asean declaration on the south china sea. declaration conduct of parties in the south china sea. managing potential conflict in the south china sea. treaty of amity and cooperation in southeast asia 1976. united nations convention on the law of the sea 1982. 43 the role of international law and national law in handling marine plastic litter andreas pramudianto universitas indonesia, indonesia. email: uipram@gmail.com submitted: may 14, 2019; reviewed: june 11, 2019; accepted: july 1, 2019 article info abstract keywords: marine, plastic, law, national. doi: 10.25041/lajil.v1i2.2024 the spread of marine plastic litter is increasing and dangerous for habitats and marine living such as the discovery of plastic in fish, sea turtles, whale mammals and even seabirds. to suppress and reduce plastic waste in the sea, one of them is to strengthen the role of law both international, regional and national law. the research objective is to analyze international, regional and national law in the perspective of international law sources to deal with marine plastic litter. the research method in this study is an analytical description based on a normative juridical approach. the results of the study show that international law in the perspective of international law sources has attempted to regulate plastic waste in the sea even though it is limited. handling of marine plastic litter does not yet have comprehensive regulations or regulated separately. in the other hand, national law becomes important in handling at the respective jurisdiction boundaries, although limited in the application of rules due to the existence of national jurisdiction. provisional conclusions show that international law still has an important role to play especially in relation to marine plastic litter that crosses national borders or outside national jurisdiction. a. introduction unep has a definition about the marine litter that is any persistent, manufactured or processed solid material discarded, disposed of or abandoned in the marine and coastal environment.1 but different from the european commission has a definition of marine litter consists of items that have been deliberately discarding, unintentionally lost, or transported by winds and rivers into the sea and on beaches.2 sources and pollutants in the sea come from various activities produced in the form of waste, garbage or debris. the main pollutant sources can come from land-base and sea. the organic or non-organic pollutant can form the ingredients of waste, garbage or debris. pollutant sources from the land-based such as industrial activities that produce liquid waste in the form of heavy metals or non-heavy metals and solid waste such as plastic garbage. while from oil and gas activities both from rigs and tankers has polluted by crude oil, processed oil or other types of oil. pollutant sources from various activities of vehicles of the sea are various types of vessels, such as garbage from 1 unep, marine litter: an analytical overview (kenya: unep nairobi, 2015), 1. 2 euopean commission, marine liter: time to clean up our act (belgium: oib, european union, 2010), 2. volume 1 issue 2, 2019: pp. 43-54. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:uipram@gmail.com https://doi.org/10.25041/lajil.v1i2.2024 the role of international law and national law in handling marine plastic litter andreas pramudianto 44 ships, oil waste and ballast. whereas pollutant sources in the sea outside the activities mentioned above, starting from domestic waste in the form of paper waste, plastic garbage, kitchen waste, or other household materials from various materials or liquid waste from agricultural activities such as pesticides and acid water from mining. in fact, there is plastic garbage that is not managed and directly thrown into the sea as it is found in the form of used beverage bottles, plastic bags, plastic wrap, plastic cups, buckets, plastic nets, etc. plastic garbage can last a very long time in the sea, but some are destroyed gradually becoming micro-plastic. plastic garbage that is still intact like a shopping bag from clear plastic which is dumped into the sea moves like a jellyfish, often being the target of predators to eat. as a result, there is plastic in the stomach which is also found in turtles and some marine mammals such as whaling. if plastic garbage is in the form of plastic which can decompose into small plastic or micro-plastic, it can be swallowed and eaten by fish, shrimp or other mammals such as whale. as a result, the stomach contents of these marine mammals contain a lot of plastic and microplastic, which can quickly or slowly cause death.3 recently the case of the discovery of dead whale, then the contents of their stomachs were found plastic and micro-plastic waste.4 conversely, the danger of plastic waste is increasingly spreading in the arctic to antarctica5 , which also affects daily life, especially in food consumed by humans from the sea. without realizing it, this dangerous impact must, of course, be tightly regulated, especially from the source of good impacts starting from planning, process and production until disposal of plastics to the sea in various ways including setting standards and regulations. international law, especially international law of the sea, has international customs law, principles of international law, international agreements or conventions, doctrines and even judicial decisions regarding cases of the sea. in the other hand, in the past thirty years, states have established numerous international bodies and arrangement with competence over the marine environment, thereby increasing the opportunities for international action, including cooperation.6 in this paper, we will discuss how international law seeks to deal with new issues, especially the presence of products from modern industries and technologies such as plastic which becomes marine plastic litter in the ocean. plastics are a product of industry and modern technology that has many benefits for humans, turned out to have a negative impact if they are thrown away and become waste, especially those that enter the ocean. oceans that are so vast and have state jurisdiction or that are outside the jurisdiction of the state have been threatened with marine plastic litter. habitat of the fishes and marine mammals is in the sea; the presence of plastic waste has affected the cycle of living things that depend on the sea. the existence of global, regional and national international law will be beneficial, especially in regulating, supervising and reducing the presence of marine plastic litter in the sea to endanger life at sea. at the very least, if global and regional international law has not regulated, national law is expected to provide solutions and alternatives in the framework of reducing marine plastic litter. this article will at least see the dangers of marine plastic litter and the need for regulation through global international law, regional international law and national law to be an urgent matter to be addressed so that the marine environment is restored. it takes a long time and must be done now to recover of the marine environment. the research method in this study is qualitative analysis research with a normative juridical approach. data collection is based on previous research and international statute and documents both hard law and soft law as well as national legislation, 3 https://ourworldindata.org/plastic-pollution#impacts-on-wildlife, accessed on june 3, 2019. the wreck of the sperm whale was found by residents of kapota island, wakatobi on november 18, 2018. world wide fund for nature (wwf) and the management of wakatobi national park found 5.9 kilograms of plastic waste in the whale's stomach. in detail there are at least 115 plastic glass bins, four plastic bottles, 25 plastic bags and thousands of other plastic waste. see https://www.brilio.net/duh/7-kasus-satwa-laut-makan-sampah-plastik-paling-mengenaskan181214w.html#, accessed on may 14, 2019. 4 unep, marine plastic debris dan microplastic: global lesson and research to inspire action and guide policy change (kenya: unep nairobi, 2016), 1. 5 https://ourworldindata.org/plastic-pollution#impacts-on-wildlife, accessed on june, 3, 2019. 6 philippe sand, jacqueline peel, adriana fabra and ruth mac kenzie, principle of international environmental law, third ed (uk, cambridge university press, 2012) 343. https://ourworldindata.org/plastic-pollution#impacts-on-wildlife https://www.brilio.net/duh/7-kasus-satwa-laut-makan-sampah-plastik-paling-mengenaskan-181214w.html https://www.brilio.net/duh/7-kasus-satwa-laut-makan-sampah-plastik-paling-mengenaskan-181214w.html https://ourworldindata.org/plastic-pollution#impacts-on-wildlife lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 45 especially indonesia. the data is then analyzed based on the objectivity in accordance with the title and purpose of this paper. b. discussion 1. the danger of marine plastic litter in modern life, almost all products contain plastic. they were beginning with synthetic plastic found since 1907, which then quickly became a plastic industry in the 1950s.7 until 2014, the production of plastics had reached 311 million tons, and estimates in 2010 reached 4.8-12 million metric tons of plastic found in the sea.8 nowadays, plastic products are an important part of daily life and are widely used need. as one of the products of modernization, plastic materials are used for household until the industrial process and products. plastic products can be found every day such as buckets, plates, glasses, plastic wrappers, plastic bags etc. the benefits of plastic for human life are important, and consequently, dependence on plastic materials is quite large. but on the other hand, plastic that has not been utilized will be disposed of as garbage. plastic waste is generally used on land, then discarded to the river or canal and partially reaches to the sea. apart from those originating from land, plastic waste can also come from activities on the coast directly to the sea. there is also plastic waste originating from water vehicles such as ships operational whose garbage is sometimes thrown away at sea. however, plastic waste is the most difficult to decompose. if the plastic waste which decomposes will become a fraction, it can even become micro-plastic which can not be seen. while some plastic waste that has not been decomposed or colourless, which has a certain shape, it can affect several species of marine mammals that are considered as food. for example, plastic bags used as shopping bags are clear or white, as like sea animals that move and cause some species of turtles to try to approach or even eat plastic waste. colourful plastic will also attract like a fish that cause several marine mammals that can be considered as food. for example, red or orange will attract seabirds to eat it because it is considered a shrimp or crab. “plastic cups found in fish” is representative title among the many scientific publications on marine debris ingestion. in a study of various types of fish and marine mammals, various plastic parts have been found in the digestive tract of his body. ranging from intact plastic, micro-plastic to nano-plastic which enters the digestion of fish or other marine mammals has caused in various diseases and even death. because of that plastic waste that circulates in the ocean, of course, will endanger living things in the sea. below are some researches data on fish and marine mammals where plastic waste is found. table 1:9 peer-reviewed studies demonstrating evidence of impacts of plastic marine debris study animal encounter type predominant debris type impact (respons) brandao et al., 2011 penguins ingestion plastic, fishing gear, other debris perforated gut, death carey et all. 2011 seabirds ingestion plastic particle, pellets perforated gut, allen et all. 2012 grey seals entanglement mf line, net, rope constriction goldstein et marine insect interaction micro-plastic increased population 7 j. boucher, and friot d, primary microplastics in the oceans: a global evaluation of sources (gland, switzerland: iucn, 2017) 43, doi: 10.2305/iucn.ch.2017.01.en. 8 unep 2016, op.cit., x. 9 anonymous. “plastic cups found in fish”, marine pollution bulletin 6, no. 10 (1975): 148, doi: 10.1016/0025-326x(75)90178-2. in arie trouwborst, “managing marine litter: exploring the evolving role of international and european law in confronting a persistent environmental problem in merkourios,” utrecht journal international law and european law 27, no. 73 (2011): 4-18, doi: 10.5334/ujiel.an. https://doi.org/10.1016/0025-326x(75)90178-2 https://doi.org/10.1016/0025-326x(75)90178-2 https://doi.org/10.5334/ujiel.an. the role of international law and national law in handling marine plastic litter andreas pramudianto 46 all. 2012 (substrate) size von moos et al. .2012 mussell (laboratory) ingestion and gill uptake micro-plastic biochemical/cellular cedervall et all. 2012 fish (laboratory) ingestion nanoparticles biochemical/cellular pham et all. 2013 gorgonian entangelement fishing line damage/breakage velez-rubio et all. 2013 sea turtles entanglement fishing gear death browne et all. 2012 lugworms (laboratory) entanglement micro-plastic biochemical/cellular, death the stephanis et all. 2013 sperm whale ingestion identifiable litter items gastric rupture, death lee et al. .2013 copepods (laboratory) ingestion micro-plastic and nano-plastic death oliveira et all. 2013 fish (laboratory) ingestion micro-plastic biochemical/cellular sources: rochman cm, browne ma, underwood aj, van franeker ja, thompson rc, amaralzettler la. 2016. from the above of this research between 2011-2013, it appears that various types of fish and marine mammals have been affected by the presence of plastic, micro-plastic to nano-plastic. the impact is felt in fish and animals when swallowing, which results in digestive disorders, biochemical disorders of body cells, gastric disorders, intestinal disorders, and death. the fish and animals studied range from small species (species of marine insects) to large mammals (whales). in facts, the discovery of the amount of plastic garbage in the sea is increasing year by year. the large amount of pollutants that enter the sea, especially plastic waste, comes from various activities which until now plastic pollution has reached 9.5 million tons per year.10 even the discovery of pacific garbage patch has shown that plastic garbage in the ocean is increasingly dangerous for international interests such as international shipping. the danger of increasing plastic garbage in the sea will endanger the life cycle of living things. existing plastic waste, partly ingested by fish and marine mammals, will then endanger humans, especially those who depend on food from the sea. in addition, fisheries, shipping, tourism industry and activities will be disrupted, which of course will hinder the sustainability process of economic and social and environmental development. so the role of international, regional and national law in handling plastic waste in the sea is very much needed as a direction to achieve sustainable development, especially the goal 11, goal 12 and goal 14 according to the sustainable development goals (sdgs). 2. international law perspective in handling marine plastic litter according to mochtar kusumaatmadja, international law is divided into global and regional international law.11 global international law regulates globally and applies throughout the world. meanwhile, regional international law only regulates in certain regions and only applies in the region. in connection with the regulation in the sea, international law of the sea applies both global international law of the sea12 and regional international law of the sea13 and special international law of the sea14. on the other hand, the existence of sources on international law is important, especially related to the regulatory perspective in the ocean.15 international customary law has affirmed that the sea, including its natural resources, belongs to humanity.16 in addition, countries which exploit natural 10 j. boucher, and friot d, op.cit., 43. 11 mochtar kusumaatmadja, pengantar hukum internasional (bina cipta: bandung, 1976), 23. 12 for example unclos 1982. 13 for example unep regional sea conventions. 14 for example convention on the prevention on marine pollution (marpol) 1973/1978. 15 article 38 (1) statuta of the international court of justice 16 icj case united kingdom v. iceland (1972) lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 47 resources must not pollute other countries.17 the customary law not to disturb other countries will be related to the principle that is often referred to as the no-harm principle and a goodneighbourhood principle. on the other hands, there are also several principles of international law developing if later it will be associated with marine plastic litter such as the international cooperation principle, sustainable development principles, precautionary principle, the polluter pays principle. meanwhile, international agreements that deal with issues at sea such as the united nations convention on the law of the sea (unclos) 1982 regulate comprehensively, including the protection of the marine environment. for which this provision is stipulated in articles 145 to 147 in the area jurisdiction known as area and section xii section i-xi article 192-297. in section v, articles 207-212 confirm that pollution originating from land, the land below it, activities in the area, dumping, originates from ships and from the atmosphere.18 as a continuation of unclos 1982, there is agreement such as the agreement on the implementation of the provisions of the united nations convention on the law of the sea of december 10 1982 has been held by the united nations fish stocks and highly conservation and management of straddling fish stocks. confirms in article 5 (f) to reduce pollution, waste disposal and disposal of fishing nets. the international agreement which provides a ban on polluting the sea, especially dumping in the sea, is regulated in the convention on marine pollution by dumping of wastes and other matter 1972 or london dumping convention (ldc 1972) came into force in 1975. for pollutant sources, one of them was plastic materials, stockholm convention on persistent organic pollutants (pops) 2001, which include several types of pops that can harm humans and other living things. whereas plastic and plastic waste, especially the movement of waste, are regulated through the basel convention 1989.19 in terms of plastic pollution, it has had a detrimental impact on fish and various marine mammals regulated through international agreements such as the international whaling convention 1946, convention migratory species (cms) and united nations convention. biological diversity (uncbd) 1992. instrument in international law is used international agreement.20 the international agreements have been contributed a lot and as an important role in the prevention of pollution in the sea, including the handling of marine plastic litter. international agreements are one of the strong instruments of international law to be implemented because they are an agreement or consensus between countries that are parties of the international agreement. the existence of the principle of pacta sunt servanda in the international agreement will be able to provide a strong commitment to be implemented for the parties in the international agreement. as a secondary international law source, the doctrine in the law of the sea it has also developed like the hot pursuit doctrine.21 this doctrine is used in other ways, especially by nongovernmental organizations in chasing ships that catch whale mammals. it is possible to one day dispose of plastic waste by a water vehicle such as a ship to be pursued by non-governmental 17 principle of the 21 stockholm declaration 1972. in the 1992 rio declaration principle 2 relating to pollution is also stated that states have, in accordance with the charter of the united nations and the principles of international law, the sovereign right to exploit their own resources in accordance with their own environmental and development policies, and responsibility responsible for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other countries or areas outside the national jurisdiction. 18 unclos 1982 entered into force in 1994 but some big countries such as united states, great britania and german has absent. david ruzie. 2004. droit international public, mementos dalloz, paris page 107. 19 article 1 (4). this convention state that wastes which derive from the normal operations of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this convention. article 1 (9) “area under the national jurisdiction of a state” means any land, marine area or airspace within which a state exercises administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment. 20 desia rakhma banjarani et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1 (2019): 11–18, 14, doi: 10.25041/cepalo.v3no1.1789. 21 michael a becker, “the shifting public order of the ocean: freedom of navigation and the interdiction of ship at sea”, harvard int lj 46, no. 1 (2005): 131-230, 131, in randal walker. international law of the sea: applying the doctrine of hot pursuit in the 21st century in http://www.nzlii.org. https://doi.org/10.25041/cepalo.v3no1.1789 http://www.nzlii.org/ the role of international law and national law in handling marine plastic litter andreas pramudianto 48 organizations on the grounds of this doctrine. on the other hand, the decisions of several international justice bodies including the international court of justice (icj), the international tribunal law of the sea (itlos) or the permanent court of arbitration (pca) have become important international law sources related to the international law of the sea. nowadays, plastic waste has become the concern of international law experts, especially the experts of the law of the sea. this principle emphasizes that although every country has sovereignty, it must not damage or pollute other countries and must be responsible for pollution or damage. thus the plastic waste is under the jurisdiction of a country must be controlled so that it does not enter the territory of the sea jurisdiction of another country, including area beyond the national jurisdiction. the unclos 1982 regulates the sea comprehensively, is a very important marine constitution which regulates the territorial sea, additional sea, eez and high seas. besides that, it is also regulated inland sea, island sea, bay, delta, sea channel even area outside national jurisdiction. with regard to plastic waste that is in the sea, both seas that are under national jurisdiction and beyond national jurisdiction need to be regulated given the dangers that will occur. 3. regional international law and especially in the effort of plastic arrangement meanwhile, the sea is beyond the jurisdiction of a country. still, it is close to the jurisdiction of several other countries, and its ecosystem is formed naturally in a certain region of the sea such as the mediterranean sea, so the arrangement is in regional international law of the sea. the regional international law of the sea has several arrangements through the united nations environmental programme (unep) regional sea`s programme. through this arrangement model, the unep regional sea`s programme divides into several regional marine management through regional international agreements such as the barcelona convention for the protection of the mediterranean sea against pollution 1976, kuwait regional convention for cooperation on the protection of the marine environment from pollution 1978, convention for cooperation in the protection and development of the marine and coastal environment of the west and central african region 1981, convention for the protection and development of the marine environment of the wider caribbean region 1983 and convention for the protection of the natural resources and environment of the south pacific region 1986. in this framework, so that regional cooperation is needed in its regulation. for example, the mediterranean sea has the barcelona convention 1976. for the atlantic there is a convention for the protection of the marine environment of the northeast atlantic or ospar convention and for the baltic sea, there is a protection on the marine convention environment of the baltic sea area. for the antarctic region, there is the conservation of antarctic marine living resources. other international agreements such as the protection of whale mammals in europe have an agreement on the conservation of small cetaceans in the baltic, north east atlantic, north and irish seas (ascobans). these international agreements have also agreed to efforts to handle marine plastic litter through soft law frameworks such as strategic, action plan and other forms. the sea around asean countries has not been regulated together through international, regional agreements. but efforts to organize together are still carried out based on bilateral agreements or international customary law. whereas special international law is agreed upon by special bodies such as the international maritime organization (imo) and applies specifically to ships including the international convention for the prevention of pollution from ships, 1973, as modified by the protocol of 1978 relating there to and by the protocol of 1997 (marpol 1973/1978). marpol prohibits the disposal of plastic waste also regulated in annex v. it is hoped that the existence of regional international law and special international law can provide a strong influence in the framework of combating plastic waste at sea. regional cooperation is important, because regional approaches are that usually have similar and even similar cultural characteristics. this approach is more familiar so that international customs, international agreements, and legal principles are better understood among countries in the region. the handling of marine plastic litter will be more easily overcome within the framework of regional cooperation with requirements, the region is stable and strong organizational relationships have been established. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 49 in contrast to special international law which generally emphasizes on a particular problem or topic. like shipping carried out by ships which are indeed special arrangements. not all countries have large shipping and ship fleet. but the shared need in a more framework for favourable conditions will be easier to handle. ships as transport vehicles are needed by almost all countries. because of these needs and interests, the vehicle must be comfortable in the sea. so that the ships also have to maintain a safe condition where they don’t waste garbage in the sea. so, the sea becomes clean and safe for all sea vehicles that pass through. therefore marpol strictly regulates and prohibits the disposal of garbage such as plastic waste in the sea without being processed. 4. soft law in handling marine plastic litter according to danusaputro, 1982 hard law is a law that has definite power-binding. instruments hard law include treaty, convention, agreement, arrangement, etc. while soft law, according to danusaputro, are legal elements that do not have definite binding power. soft law instruments are usually in the form of declarations, resolutions, strategic, action plans, statements etc. the stockholm 1972 declaration has emphasized through principle 7, which regulates marine pollution, including plastic waste in the sea. the state should take all possible steps to prevent marine pollution by substances that are responsible for endangering human health, life and marine life, destructive facilities or which is contrary to other legal uses of the sea. in 1981 the east asian countries agreed on the action plan in the name the action plan for the protection and development of the east asian seas action plan. at the same time, food and agriculture organization (fao) countries have agreed the fao code of conduct for responsible fisheries also regulates the handling of plastic waste, especially related to fishing ports, which must provide waste management and the prohibition of disposal of plastic nets at sea. in the european, there is the european marine strategy framework directive (2008/56/ec within which eu member state shall take action to achieve or maintain good environmental status (ges) of their marine water by 2020.22 mediterranean sea in the framework of handling marine plastic litter, there is a strategic framework on management of marine litter in the mediterranean was agreed, adopted in 2012 and the implementation plan for the regional management plan of marine litter in the mediterranean, adopted in 2013, entered into force in june 2014. for the north sea atlantic region, it was agreed that the regional action plan on marine litter for the ospar convention was adopted in 2014. as for the baltic sea, the regional action plan on marine litter for the helsinki convention was adopted in 2015. for the carabia sea region, there is the regional action plan on marine litter for the wider caribbean region (rapmali) was approved in 2008 and revised in 2014. meanwhile, in the western pacific region, the northwest pacific action plan on marine litter (2008) was agreed. and then, cleaner pacific 2025 for the south pacific region was agreed. pacific regional 2016-2025 waste and pollution management strategy. meanwhile, asean in handling marine plastic litter has also issued several soft laws such as the bangkok declaration on combating marine debris in asean region (2018), joint media statement of the special asean ministerial meeting on marine debris (2019), asean framework of action on marine debris (2019) and asean plus three also agree on the asean + 3 marine plastics debris cooperative action initiative and then asean-eas summit leader`s statement combating marine plastic debris (2018). the 2030 agenda and the sustainable development goals (sdgs) have confirmed through goal 11, goal 12 and goal 14 that are relevant to the issue of plastic pollution. target sdgs related to plastic waste in the sea include by 2025, prevent and significantly reduce marine pollution, in particular from land-based activities, including marine debris and nutrient pollution.23 22 f galgani, g hanke, s werner and l de vrees, “marine litter within the european marine strategy framework directive”, ices journal of marine science 70, no. 6 (2013): 1055-1064, doi: 10.1007/978-3-319-13878-7_10. 23 unep 2016. op.cit., 7. the role of international law and national law in handling marine plastic litter andreas pramudianto 50 meanwhile, united nations general assembly (unga) at the 70th session in december 2015, resolution 70/235 was adopted which included the decision (paragraph 312) that the 17th meeting of the united nations informal consultative process on the law of the sea would focus its discussions on the topic ‘marine debris, plastics and microplastics’. within the framework of marine protection from the dangers of pollution including plastic waste pollution, unep had developed a global program of action for the protection of the marine environment from land-based activities in 1995. furthermore, after transform unep governing council (unep gc) to the united nations environmental assembly (unea), it has published several resolutions including resolutions unep/ea.1/res.6 on marine plastic debris and microplastic, resolution unep/ea.2/res.11 on marine plastic litters and micro-plastics, resolution unep/ea.3/res.7 on the marine litter and micro-plastics, resolution unep/ea.4/res.6 on marine plastic litter and micro-plastics and resolution unep/ea.4/res.9 on addressing singleuse plastic products pollution. 5. national law regarding marine plastic litter management efforts global, regional and special international law are adhered to and even integrated into certain norms to be part of the national legal system.24 so that in handling plastic waste at sea, national law generally adheres to applicable international provisions such as international customary law, international agreements etc. in indonesia, there are several national laws specifically legislation that regulates pollution and management of the environment, including waste pollution such as the law number 32 of 2009 concerning environmental protection and management. although in this law there is no explicit provision or norm regarding marine plastic litter, however, this law regulates the environment and pollution in general. waste management in indonesia has been regulated through law, namely law number 18 of 2008 concerning solid waste which still regulates solid waste activities in general. but in principle garbage must be managed and the disposal process is arranged through various forms. for producers, there is an obligation to manage to package produced, and the government can provide incentives. imports of waste, mixing waste with hazardous and toxic waste materials, managing waste which then causes pollution, improper waste disposal, disposing of garbage in open places and burning garbage are prohibited. while the regulations governing maritime affairs in various aspects are law number 14 of 2018 concerning marine. in this law, it regulates the understanding of the sea to marine activities. while the protection of the marine environment is also regulated in this law. as the implementation of the law, there are several government regulations including government regulation number 19 of 1999 concerning marine pollution and/or damage control, government regulation number 51 of 2002 concerning shipping, government regulation number 61 of 2009 concerning ports, government regulation number 27 of 2012 concerning environmental permit, government regulation number 81 of 2012 concerning household waste management and similar to households waste, government regulation number 32 of 2019 concerning marine space management and several other government regulations. presidential regulations relating to waste include presidential regulation no. 97 of 2017 concerning national policies and strategies for household waste management and similar to household waste and presidential regulation no. 35 of 2018 concerning the acceleration of construction of waste processing installation into green energy-based electric energy. whereas specifically for the management of waste in the sea, there is currently a national action plan for waste management in the sea including marine plastic litter which is regulated through presidential regulation no. 83 of 2018.25 as a more operational regulation implementer, the ministry level has also been issued several ministerial regulations that need to be considered in waste management including minister of 24 jack l. goldsmith and eric a. posner stated that governments take care to comply with cil, and often incorporate its norms into domestic statutes. national courts apply cil as a rule of decision, or a defense, or a canon of statutory construction. jack l. goldsmith and eric a. posner. “a theory of customary international law,” chicago john m. olin law & economics working paper 66, no. 4 (1999): 1-100, 123, doi: 10.2139/ssrn.145972. 25 presidential regulation no. 83 of 2018, concerning handling marine waste, and contains the national action plan 2018-2025 involving various ministries/institutions and local governments. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 51 public works regulation number 03/prt/m/2013 concerning the implementation of solid waste infrastructure and facilities in household waste & waste-like waste management households, minister of home affairs regulation number 33 of 2010 concerning waste management guidelines, minister of trade regulation number 31 of 2016 concerning provisions on the import of non-hazardous substance, regulation of the state minister of environment number 16 of 2011 concerning guidelines for content draft regional regulations on home waste management household stairs and trash, minister of environment regulation number 13 of 2012 concerning guidelines for implementing reduce, reuse and recycle through waste banks, minister of environment and forestry regulation number p.10/klhk/setjen/plb.0/4/2018 about guidelines for preparation to wisdom and regional strategy for household waste management and similar of household waste. waste management in ports. whereas circular letters to limit the use of plastic bags and garbage, have been issued through circular (se) of the director-general of waste, waste, and dangerous toxic material of the ministry of environment and forestry (lhk) number s.1230 / pslb3-ps / 2016 concerning prices and mechanisms for the application of paid plastic bags and circular (se) of the director-general of waste, waste and hazardous toxic material of the ministry of environment and forestry (lhk) number se.8/pslb3/ps/plb.0/5/2016 concerning reduction of plastic waste through application of bags shopping for free disposable plastics and circular (se) of the director-general of waste, waste and hazardous toxic material of the ministry of environment and forestry (lhk) number se.2/pslb3/ps/plb.0/2/2019 concerning 2019 national waste care day. while related to the management of the coast and sea there is a decree of the minister of environment number kep-45/menlh/11/1996 concerning the sustainable coast program, decree of the state minister of environment number 51 of 2004 concerning sea water quality standards, decree of the state minister of environment number 179 of 2004 concerning errors in the decree of the state minister of environment number 51 of 2004 concerning sea water quality standards. even in regions or village, there are also regional regulations regarding the handling of plastic use so that it does not become plastic waste including bali governor regulation number 97 of 2018 concerning limitation of disposable plastic waste, mayor of denpasar regulation number 36 year 2018 concerning reduction of use of plastic bags, balikpapan mayor regulation number 8 year 2018 concerning reducing the use of plastic bags, bogor mayor regulation number 61 of 2018 concerning reducing the use of plastic bags, mayor of padang regulation number 36 of 2018 concerning control of the use of plastic shopping bags and several other regulations. in a court case, against the lawsuit by the indonesian plastic recycling association (adupi) on bali governor regulation number 97 of 2018, the supreme court has decided among other things that the waste reduction norms regulated in law no. 18 of 2008 and bali provincial regulation no. 5 of 2011 concerning waste management must be interpreted as a ban on the use of disposable plastics, as stipulated in bali governor regulation number 97 of 2018, thereby strengthening the government’s regulation.26 this case began with a garbage collection event in 150 locations in bali province found 30 tons of plastic waste. seeing this condition, the governor of bali followed up with the issuance of a governor regulation number 97 of 2018, which limits the use of plastic waste for very urgent and extraordinary reasons. however, with the issuance of this governor regulation, it was sued by three elements including the indonesian plastic recycling association (adupi), the plastic bag trade businessman and the plastic goods industry. the lawsuit was submitted to the supreme court on the reason that the governor had made a new norm. however, the supreme court judge has rejected the petition of the three petitioners based on law number 11 of 2005 concerning ratification of the international covenant on economic, social and culture right, article 28h paragraph 1 of the 1945 constitution, article 9 paragraph 3 of law number 39 of 1999 concerning human right, article 65 paragraph 1 of law number 32 of 2009 concerning environmental protection and management and law number 18 of 2008 concerning waste management.27 26 https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-koster-menang-lawanpengusaha, accessed on 3 march, 2019. 27 https://www.aliansizerowaste.id/single-post/2019/07/17/mahkamah-agung-pemerintah-daerah-dapat-melarangplastik-sekali-pakai, accessed on 3 march, 2019. https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-koster-menang-lawan-pengusaha https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-koster-menang-lawan-pengusaha the role of international law and national law in handling marine plastic litter andreas pramudianto 52 thus at the national level, indonesia has had various laws and regulations that regulate pollution control, waste management, plastic control. likewise, the courts, especially the supreme court, have played a role in deciding and strengthening legislation regarding restrictions on plastic waste, specifically the bali governor regulation. the most important thing about handling marine plastic litter, indonesia also has a national action plan for plastic waste management that also gives a mandate to central and regional institutions to play a role in handling plastic waste at sea. thus the handling of plastic waste in the sea requires joint efforts and adequate legal instruments. c. conclusion plastic garbage on the sea turns out to have endangered living things and humanity. in many cases, many fish and animals in the sea have swallowed plastic waste, causing disease and even death. of course, it will be dangerous for humans who eat fish and marine animals that have swallowed plastic waste. the handling of plastic waste through international law has been sought, especially the follow-up of agreed international agreements. regional international law has also made important contributions in the framework of reducing plastic waste in the sea, especially in their respective regions. nevertheless, national law also makes an important contribution to increase and support the role of international law if there is a lack of international law. while the recommendations of this study need special international institutions that continue the results in the form of resolutions, recommendations or similar forms, further research is needed on transboundary plastic waste in the sea so that it can know whose responsibility and what is imposed and how to prove and compensate if there is a loss for a country due to the inclusion of various plastic waste in its marine area. references a. journal anonymous. “plastic cups found in fish”, marine pollution bulletin 6, no. 10, 1975: 148, doi: 10.1016/0025-326x(75)90178-2. banjarani, desia rakhma et al. “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and syria conflict),” cepalo 3, no. 1, 2019: 11–18, doi: 10.25041/cepalo.v3no1.1789. becker, michael a. “the shifting public order of the ocean: freedom of navigation and the interdiction of ship at sea” harvard int lj 46, no. 1, 2005: 131-230. galgani, f., et.al. “marine litter within the european marine strategy framework directive”, ices journal of marine science 70, no. 6, 2013: 1055-1064, doi: 10.1007/978-3-319-13878-7_10. goldsmith, jack l., posner, eric a. “a theory of customary international law,” chicago john m. olin law & economics working paper 66, no. 4, 1999: 1-100, doi: 10.2139/ssrn.145972. trouwborst, arie. “managing marine litter: exploring the evolving role of international and european law in confronting a persistent environmental problem in merkourios,” utrecht journal international law and european law 27, no. 73, 2011:4-18, doi: 10.5334/ujiel.an. b. book boucher, j. and friot d. primary micro-plastics in the oceans: a global evaluation of sources. gland, switzerland: iucn, 2017, doi: 10.2305/iucn.ch.2017.01.en. euopean commission. marine liter : time to clean up our act. belgium: oib, european union, 2010. kusumaatmadja, mochtar. pengantar hukum internasional. bandung: bina cipta, 1976. philippe sand, jacqueline peel, adriana fabra and ruth mackenzie. principle of international environmental law, third ed. uk: cambridge university press, 2012. https://doi.org/10.25041/cepalo.v3no1.1789 https://doi.org/10.5334/ujiel.an. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 53 ruzie, david. droit international public. paris: mementos dalloz, 2004. unep. marine litter: an analytical overview. kenya: unep nairobi, 2015. unep. marine plastic debris and micro-plastic: global lesson and research to inspire action and guide policy change. kenya: unep nairobi, 2016. c. internet https://www.aliansizerowaste.id/single-post/2019/07/17/mahkamah-agung-pemerintah-daerahdapat-melarang-plastik-sekali-pakai, accessed on 3 march, 2019. https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-kostermenang-lawan-pengusaha, accessed on 3 march, 2019. https://ourworldindata.org/plastic-pollution#impacts-on-wildlife, accessed on june, 3, 2019. https://www.aliansizerowaste.id/single-post/2019/07/17/mahkamah-agung-pemerintah-daerah-dapat-melarang-plastik-sekali-pakai https://www.aliansizerowaste.id/single-post/2019/07/17/mahkamah-agung-pemerintah-daerah-dapat-melarang-plastik-sekali-pakai https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-koster-menang-lawan-pengusaha https://news.detik.com/berita/4620238/pembatasan-kantong-plastik-digugat-gubernur-koster-menang-lawan-pengusaha https://ourworldindata.org/plastic-pollution#impacts-on-wildlife the role of international law and national law in handling marine plastic litter andreas pramudianto 54 109 synergising international labour laws and human rights for protection of indonesian migrant workers muhammad abdul azis1, m. syaprin zahidi2, david pradhan3 1international relations department, faculty of social and political sciences, universitas muhammadiyah malang, indonesia, email: maaazis0150@gmail.com 2international relations department, faculty of social and political sciences, universitas muhammadiyah malang, indonesia email: syaprin123@umm.ac.id 3school of international studies, jawaharlal nehru university, india, email: happy48_isa@jnu.ac.in submitted: july 13, 2020; reviewed: august 18, 2020; accepted: september 3, 2020 article info abstract keywords: tki, protection, human, rights. doi: 10.25041/lajil.v2i2.2036 efforts in promoting international legal protection of indonesian migrant workers can be explained that it has complete regulations. this situation cannot be separated from the facts that show the importance of granting specific labour rights for migrant workers in the international community’s perspective. the purposes of this article are to encourage all people to consider seriously the applying of international human rights law in order to promote of human rights, especially, for indonesia migrant workers (tki) and create better migration management. in legal-formal matter, the applying of legal mechanisms has been recognized as human rights by indonesia law. one of the best ways is trying to join the outside world in order to attain economic development for the nation. exploiting opportunities of globalized world economy does not mean our sovereignty weakened but rather as an effort to achieve more substantive effort. this can be interpreted as a political commitment from the government by learning and cooperating with other states to be more pragmatic by prioritizing the interests of the people as a form of democracy. a. introduction in asean, especially in malaysia, start to abandon the principle of non-intervention to the issue of human rights in myanmar.1 from that case, consideration of international human rights deserves to occupy a central place in the policy-making process, either that is domestic or foreign. it cannot separate from human nature itself that has implications to all aspects of life, from individual behaviour affect other persons to a country that get a relation to its 1 wayne arnold, international herald tribune, 3 volume 2 issue 2, 2020: pp. 109-120. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:maaazis0150@gmail.com mailto:syaprin123@umm.ac.id mailto:happy48_isa@jnu.ac.in https://doi.org/10.25041/lajil.v2i2.2036 synergising international labour laws and human … m. abdul, m. syaprin z, & david 110 people.2 for example, in the previous issue of sexual orientation, it is viewed traditionally merely morality, but in this current time, it cannot be separated from the issue of the individual right of a person.3 similarly, in the level of the international community, it assumes the law has not powered of binding when we transgress jus cogens that are human values which have been recognized by the international community.4 at the practical level of international law about recognition of the countries and government at this time has encountered a fundamental change to the inclusion of respect to human rights as a precondition for giving the recognition.5 in fact, european union member states that future candidates that want to get in the european union must have constitutionalisation of rights.6 human rights in indonesia have been strictly regulated in the 1945 indonesian constitution.7 thus, in practical condition utility of human rights law is necessary to all policy-making process in all sectors in both national and international levels. in addition, with increasing awareness of human rights discourse8 and many practices of democratization in all parts of the world -whether carried out under pressure or voluntarily has added justification for utilization of international law itself in the domestic level as a tool for strengthening democratic system in national level.9 it is not surprising that international law can be used as a tool for promoting developing countries’ interest, though.10 from that fact, scepticism over the universality of international law as the law of all nations in this recent time had become relevant.11 same as with sociological-anthropological debate between relativists and universalist related to the validity of human rights become irrelevant. 12 in the context of promoting international legal protection of indonesian migrant, workers can be explained that it has complete regulations.13 this situation cannot be separated from the facts that show the importance of granting specific rights for migrant workers in the 2 jack donnelly, universal human rights in theory and practice (ithaca: cornell university press, 2003). for the critic, look hilary charlesworth, “what are ‘women’s international human rights?,’” in rebecca cook (ed.), women's rights in international law, (philadelphia: university of pennsylvania press, 1994), 54-58. 3 law in case lawrence v. texas, 123 s.ct. 2472 (2003) 4 article 53 of vienna convention on the law of treaties states that a treaty will be void if “it is incompatible with peremptory norms of the general international law” 5 eric stein, “international law and internal law: toward internationalisation of central-eastern european constitutions,” american journal of international law 88, no. 3 (1994): 427-450, 427, doi: 10.2307/2203712. 6 philip alston & j.h.h. weiler, “an ‘ever closer union’ in need of a human rights policy”, european journal of international law 9, no. 2 (1998): 658-723, 658, doi: 10.1093/ejil/9.4.658. 7 erika norliza’aini, erina pane, and lintje anna marpaung, “analisis penyelesaian sengketa partai solidaritas indonesia studi putusan badan pengawas pemilu kota bandar lampung nomor: 01.ps.reg.bwsl.bdl.08.01.vii.2018.,” cepalo 3, no. 2 (2019): 71-76, 73, doi: 10.25041/cepalo.v3no2.1846. 8 regarding the concept of “right talk” see ann glendon, right talk: the impoverishment of political discourse (new york: free press, 1991), 23. 9 eyal benvenisti, “reclaiming democracy: strategic uses of foreign and international law by national courts,” american journal of international law 102, no. 2 (2008): 241-274, 241, doi: 10.2307/30034538. 10 beth lyon, “discourse in development: a post-colonial ‘agenda’ for the united nations committee on economic, social, and cultural committee,” american university journal of gender social policy and law 10, (2003): 535, doi: 10.2139/ssrn.449301. 11 bruno simma, “universality of international law from the perspective of practitioner,” european journal of international law 20, no. 2 (2009): 265-297, 265, doi: 10.1093/ejil/chp028. 12 philip alston, “a framework for the comparative analysis of bills of rights,” in philip alstons (ed.), promoting human rights through bill of rights: comparative perspective (new york: oxford university press, 1999), 1-3. 13 richard plender (ed), basic documents on international migration law (leiden and boston: martinus nijhoff, 2007), 31. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 111 international community’s perspective. according to this issue, antoine pecoud and paul de guchteneire see existing stagnation due to the absence of will pure because of politic itself.14 therefore, it is appropriate if we intend to advance the law protection for migrant workers, we have to start to consider the implications of international law and apply it through the prism of human rights for the protection of the indonesian migrant workers. advancing migration management is not only good for migrant workers’ human rights itself but also affects economic development, particularly, for indonesia citizen itself. migration is an old issue, but it still will be one of the main topics in this period and next period. in other words, migration is a reality that cannot be avoided. in fact, we have to give more efforts to manage it as well as possible for the benefits of all. it is therefore unavoidable that migration will happen and therefore this is an issue that can not be avoided. this article purposes of encouraging all people to consider seriously the applying of international human rights law for the promotion of promoting of human rights, especially, for indonesia migrant workers (tki) and create better migration management. in both national and international law, the application of legal mechanisms has been recognized as human rights by indonesia law. 15 in other words, the neglecting of the application of international labour rights as embodied in international law can be equated with human right violation. b. discussion this article is based on secondary sources and relies on existing data and reports of government and non-government organisations to analyse the issue. the article is metaanalytic and utilizes the case of tki as a heuristic for proposing the reinterpretation of international labour norms through the human rights paradigm. it is divided into four parts, each of it contains arguments that support the conclusion and suggestion that is presented. the first part contains an introduction that is mapping the issues is identified by the writer (1&2. in the second part, it is aimed review of the indonesia practice in its efforts of protection of human rights protection for indonesia migrant workers (tki) (3&4). 1. review of policy and practices on migrant workers protection in overall, efforts that are undertaken by the indonesian government to protect the migrant workers might be still ad hoc (tambal-sulam).16 for instance, reactionary-emotional government attitude can be clearly seen, such as related to the termination of sending workers to malaysia because of many human right violations.17 this is showed by confusion and rejection of the emotional reaction of the government.18 because of this effectiveness in this such pressure, that will be counterproductive to the policy because it actually produces in increasing illegal migrant workers in malaysia. next, this policy can bring high human rights violation against migrant workers as a result of their migratory status.19 this termination is 14 antoine pécoud dan paul deguchteniere, “migration, human rights and the united nations: an investigation into the obstacles to the un convention on migrant workers’ right,” windsor yearbook of retrievedto justice 24, (2006): 241-244. 15 article 7 (1) of law no. 39 of 1999 on human rights (hereinafter: the human rights act) which states “each person has the right to use all efforts in international forums against all violations of human rights are guaranteed by international law " 16 manolo abella dan geoffrey ducanes, “the effect of the global economic crisis on asian migrant workers and governments’ 17 human rights watch, help wanted: abuses against female migrant domestic workers in indonesia and malaysia, july 21, 2004, 31. 18 http://www.pikiran-rakyat.com/index.php?mib=news.detail&id=84352, accessed on may 03, 2019. 19 sarah cleveland, “legal status and rights of the undocumented workers,” american journal of international law 99, no. 2 (2005): 460-465, 460, doi: 10.2307/1562510. beth lyon, “new international human rights standard on unauthorized immigrant worker rights: seizing an opportunity to pull government out of shadows,” in anne bayefsky (ed.), human rights and refugee, internally displaced http://www.pikiran-rakyat.com/index.php?mib=news.detail&id=84352 synergising international labour laws and human … m. abdul, m. syaprin z, & david 112 intended to be pressure for malaysia and make them revise memorandum of understanding (mou) that previously they had agreed with. this mou between the government of indonesia and malaysia governs the private contractual agreement that employers enter into with the tki. though a subject of private international contract, the involvement of the sovereign states in the framing and negotiating the regulations of these private contractual agreements, and possibly even taking over cases in which the citizens of indonesia are adversely affected through subrogation as parens patriae does bring it within the ambit of international law especially since the protection of the rights of its citizens, even when they are outside the state is a duty of the government.20 due to the extreme diversity in the provisions of the private contractual agreements encountered, this article focuses on the macro-legal aspect of state duty under international law to protect its citizens from violations of their rights when they are employed outside its territorial jurisdiction and suggests the deployment of a human rights approach as a universal normative imperative to achieve it more effectively.21 the purpose of revised mou itself is to remove the provision which authorizes household to hold documents of indonesian migrant workers. 22 if we get attention to the actual issue, in particular, it can be avoided when the planner of mou, especially from indonesia, understand the principles of international legal migration.23 one of the functions of cmw ratification is to provide the understanding to the relevant officials regarding good practices in terms of immigration. in popular practice, the employer holds identity documents has seen as an obligation for the recipient country to ensure compliance with the national laws related to immigration is conducted. thus, publishing of these provisions is a faux pas which affects the labour rights of the tki and creates disproportionate power of the foreign employer over the tki. in the next section, a review is done, of the extent towards how far recourse to the utilization of international legal regimes (for protection of citizens under private international contract) by the government of indonesia. 2. utilizing of international law by indonesia government existing secondary literature and data regarding the utilizing of international law by the indonesia government in its efforts to protect migrant workers can still be seen far from satisfactory. indonesia government actions clearly demonstrate this situation merely signed a cooperation agreement with recipient state to migrant workers (host state), namely malaysia in 2004 and jordan and kuwait in 1999. 24 this article focuses on these countries as a majority of labour disputes relating to a violation of private contract of international employment are reported from these countries. to be fair, indonesia has also drawn up agreements with other states to protect the rights of the tki, but they are not being considered here for the sake of focussing on the topic. the exaggerated expectation of this mou is misplaced because mou is not an international agreement, treaty or convention that is contemplated by article 2 (1) vienna persons and migrant workers (netherlands: koninklijke brill, 2005): 554-66; laurie berg, “at the broder and between the cracks: the precarious position of irregular migrant workers under international human rights law,” melbourne journal of international law 8, no. 1 (2007): 287-320, https://doi.org/10.4324/9781315248967-12. 20 archibugi, d. and held, d., cosmopolitan democracy. an agenda for a new world order (cambridge: polity press, 1995), 21. 21 r. bauböck, “citizenship: international, state, migrant and democratic perspectives”. in globalizing migration regimes, (avebury: ashgate, 2006), 144–166. 22 http://www.nakertrans.go.id/news.html,253, accessed on may 3, 2019. 23 migration in an interconnected world: new direction for actions. 24 tribun jabar, edition monday, 19/11/2007. http://www.nakertrans.go.id/news.html,253 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 113 convention 1969.25 mou is more appropriate as a commitment that makes the breaching party is hard to ask a responsibility. this is shown by using of ambiguous terms such as “will” rather than “shall” which is common in the legal documents. generally, mou is intended to set regulations on issues such as the confidential defence of the country.26 excessive attention to mou results in inefficiency if we consider that the number of the host country will continue to increase over time. for example, indonesia until now cannot make mou with saudi arabia, which is a destination country that is many indonesia migrant workers migrate to for employment.27 participation of indonesia in multilateral treaties that is related to the promotion of the interests of migrant workers can be said far from satisfactory. until now, indonesia has successfully ratified convention that is classified by the international labour organization (ilo) as a basic instrument.28 however, indonesia does not sign any ilo conventions that are specifically intended to migrant workers yet.29 likewise, signatory against cmw itself, indonesia has not signed it. it further shows indonesia does not seem real to look for international law as relevancy for the protection of migrant workers. similarly, it can be seen in the optimization of asean’s role in this case.30 instead, asean in designing its charter tends to be busy with its acquisition status law which is already not a problem anymore. but, what we need to concern is what asean can do for the citizens of its member states. until now, asean is only capable of publishing the asean declaration for promoting and protecting the human right of migrant workers on january 13, 2007, in cebu, philippines, which does not have binding force.31 similarly, the establishment of a regional human rights mechanism is still a mere expectation. one of them is the establishment of the human rights commission that is composed of representatives of the government. after that, the commission also only has a role as a consultative organ just for member states. in addition, the commission is not given the authority of receiving complaints. in fact, in the commission’s terms of reference (tor) has the commission’s objectives that not only promote but also engaged in the protection sector.32 focusing on promotion aspects, according to sihasak phuangketkeow, chairman of the high s a planner of the tor, terms of reference can be separated from realistic attitude. 33 this situation shows that indonesia leadership in asean has diminished whereas, in asean, besides indonesia, there are philippines and vietnam that are also countries that are sending many migrant workers in the world. meanwhile, from statement on its official website, bnp2tki explained various achievement that they had done.34 two examples that to be noted here are: (i) signing mou with ilo on may 30 2007 in order to streamline and utilizing ilo’s helps in capacity building sector and training for staffs bnp2tki; (ii) exploring the cooperation network with 25 contents this article “’treaty’ means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”, 26 anthony aust, handbook of international law (new york: cambridge university press, 2005), 7-55. 27 kompas.com, tki tewas dianiaya majikan di arab saudi, accessed on may 3, 2019. 28 list ilo instruments that has ratified by indonesia can be found in http://www.ilo.org/ilolex/english/newratframee.htm, accessed on may 3, 2019. 29 http://www.ilo.org/ilolex/english/newratframee.htm, accessed on may 3, 2019. 30 ceah whui ling, “migrant workers as citizens within the asean landscape: international law and the singapore experiment,” chinese journal of international law 8, no. 1 (2009): 205-231, 205, doi: 10.1093/chinesejil/jmn041. 31 http://www.12thaseansummit.org.ph/innertemplate3.asp?category=docs&docid=23, accessed on may 3, 2019. 32 look terms of reference of asean intergovermental commission of human rights, adopted from ministerial session on 19-20 july 2009 can be found on: http://www.asean.org/doc-tor-ahrb.pdf, accessed on may 3, 2019. 33 http://www.aseansec.org/hlp-otherdoc-1.pdf, accessed on may 3, 2019. 34 http://bnp2tki.go.id/content/view/226/85/, accessed on may 3, 2019. http://www.ilo.org/ilolex/english/newratframee.htm http://www.ilo.org/ilolex/english/newratframee.htm http://www.12thaseansummit.org.ph/innertemplate3.asp?category=docs&docid=23 http://www.asean.org/doc-tor-ahrb.pdf http://www.aseansec.org/hlp-otherdoc-1.pdf http://bnp2tki.go.id/content/view/226/85/ synergising international labour laws and human … m. abdul, m. syaprin z, & david 114 a various international institution such as usis, asean, ecosoc, aanz (asean, australia, and new zealand), gfmd (global forum on migration and development), acils (american center for international labor solidarity), iom (international organization for migration), wto (world trade organization), and unifem (united nations development funds for migration), that is intended as an effort to strengthen indonesia bargaining position in protecting migrant workers in the placement countries. unfortunately, various forms of that cooperation are hard to know by the public, in particular, regarding concrete benefits that they produce. nicola piper and robyn iredale, in their study, examine obstacle in the ratification of cmw, as follows;35 indonesia has a weakness in governance structures and bureaucratic problems that make indonesia does not have a strategic policy that focuses on long-term development.36 additionally, it is related to policies that are connected to the issue of immigration that only becomes an issue in ministerial level and the worst thing is a major consideration of planning the policy formation more emphasis on efforts to reduce unemployment rather than questioning the establishment of expensive protection mechanisms.37 circumstances are exacerbated by the emphasis on policy for creating political stability and national integration. another reason that is an underlying refusal of the government to ratify cwm cannot be divided from a belief that is in the decline of interest in countries that have been receiving indonesia migrant workers. in addition, they do not want to open confrontation with that recipient countries. cmw, in their perception, is seen to be not necessary to get action because that recipient countries is not their state members. because of it, if we ratify cmw, it is just left benefit for foreign workers that work in indonesia. generally, they have better condition than indonesia migrant workers. another reason is related to confidence of loss of livelihood as a result of the exposure that is forced by cmw. absence of pressure has become a driving force for cwm waiver. the last is limited human resources and finance for funding the complex processes, such as obligations to providing a report.38 this situation is upside down with the philippines and mexico that are very active to employ international law for promoting the rights of their migrant workers. philippine is not only active in international law but also consistently apply at the domestic level. as for its proactive policy, along with mexico, become countries that are succeeding in making issue migrant workers’ rights as part of the international community agenda. 39one of its phenomenal achievements is the birth of advisory opinion number 18 related to strengthening the application of the non-discrimination principle against migrant workers who do not a valid immigration document. 40 in that decision, the inter-america court insists the principle of non-discrimination must be treated to all people without looking at their immigration status. 41 related with that, sarah cleveland considers that decision that has been discussed in detail, so it can provide important contribute associated with the development of undocumented migrant workers in america and other places in the world.42 3. efforts in foreign country 35 nicola piper and robyn iredale, “identification of the obstacles to the signing and ratification of the un convention on the protection of the rights of all migrant workers: the asia pacific perspective,” unesco series of country reports on the ratification of the un convention on migrants unesco (2003). 36 ibid., 4-23 37 ibid., 21. 38 ibid., 5-23. 39 beth lyon, loc.cit. 40 http://www.corteidh.or.cr/seriea_ing/index.html, accessed on may 3, 2019. 41 http://www.cidh.org/annualrep/2002eng/chap.6.htm#i.%20%20%20%20%20%20%20%20introduction, accessed on may 3, 2019. 42 sarah cleveland, op. cit., 460 http://www.corteidh.or.cr/seriea_ing/index.html http://www.cidh.org/annualrep/2002eng/chap.6.htm#i.%20%20%20%20%20%20%20%20introduction lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 115 migrants are one of a group that is very vulnerable to all forms of human rights abuse in a foreign country. this situation cannot be separated from a negative view of migrants themselves.43 this is clearly shown by a survey that is conducted by pew global research on perspectives of the world community towards immigrants.44 this perspective can be unconnected from the belief that migrants lead to increasing spending public and low salaries for the local community45. here we review steps that have been done by the indonesia government in the recipient countries. for protecting migrant workers, the government has taken the following steps; (i) minister issued decree no. 157/men/2003 on protection insurance for indonesia migrant workers overseas; (ii) providing guidance for migrant workers in some countries (saudi arabia, kuwait, and malaysia) by advocacy team that is composed students and civil servants that are working in the related country and local attorneys from that country. this team must record, monitor, and defend migrant workers in a foreign country. first policy related to a procurement insurance program for migrant workers does not have a clear positive effect. not less, jumhur hidayat as chair of board placement and protection of indonesia migrant workers (bnp2tki) states that all consortiums that are existed are “shoddy’.46 it can be that money 400.000 idr become new corruption area. it connects to indonesia migrant workers do not want to get along with that problem.47 interestingly, jumhur instead will force the migrant workers to pay the insurance in the future. 48 even more ridiculous is the desire of minister of manpower, erman shepard, recently wanted to form a new consortium which holds monopoly that he considers it can resolve the problem that had been haunting him. rather than solving that problem, it causes a confrontation with business competition supervisory (kppu) because it may violate act no. 5 1999 of anti-monopoly.49 the second policy that is most attractive policy-establishing is cooperation with local parties and forms advocacy team that is composed of local lawyers, students, and civil servants. this policy also cannot be felt significantly by indonesia migrant workers. research indicates that most of the tki is not aware of the existence of this initiative in the country that they work in. a common institution such as retrievedto the embassy, according to indonesia migrant workers, is suggested to become more complicated. for example, in countries of east asia such as hong kong and south korea that become the main destination for indonesia migrant workers, is classified as a democratic country, so that, presence and role of civil community is strong enough. in countries like that, migrant workers are likely to get help from the international non-governmental organization (ingo), which is referred to as “shelter” for indonesia migrant workers.50 therefore, it is appropriate if a study is aimed at improving the ability of workers, filipino migrants recommend programs such as education and organization that has a purpose at improving 43 jorge bustamante, “immigrant vulnerabilities, loc.cit. 44 pew research centre, world publics welcome global trade – but not immigration: 47-nation pew global attitudes project, october 4, 2007. 45 gordon h. hanson, the economic logic of illegal immigration (new york: council on foreign relations, 2007), 19-21. 46 http://www.antara.co.id/view/?i=1199882713&c=nas&s=, accessed on may 3, 2019. 47 http://www.tempointeraktif.com/hg/nasional/2006/10/01/brk,20061001-85125,id.html, accessed on may 3, 2019. 48 kantor berita antara, jumhur: semua asuransi, loc.cit. 49 http://www.majalahtrust.com/ekonomi/ keuangan/981.php, accessed on may 3, 2019. 50 http://www.amnestyusa.org/ document.php?id=engasa250072006&lang=e, accessed on may 3, 2019. http://www.antara.co.id/view/?i=1199882713&c=nas&s= http://www.tempointeraktif.com/hg/nasional/2006/10/01/brk,20061001-85125,id.html http://www.majalahtrust.com/ekonomi/%20keuangan/981.php http://www.amnestyusa.org/%20document.php?id=engasa250072006&lang=e synergising international labour laws and human … m. abdul, m. syaprin z, & david 116 awareness of labour rights and its human rights respectively.51 correspondingly, law for filipino migrant workers is clearly based on the recognition of the important role of ngos in the struggle for human rights and welfare of migrant workers. 52 that situation is very different from destination countries in middle east asia, generally, still, adhere to monarchy absolute systems such as saudi arabia or bahrain where existence and position of civil society are very weak.53 in fact, bahrain has occurred criminalization of domestic migrant workers by local law enforcement, in this case, police.54 in such countries, the role of the embassy and local law enforcement agencies are really vital. as a consequence, in the future, designing a system of legal protection for the labour rights (under private international law in a foreign country must include the specific need for the government of indonesia to use international law principles for ensuring that its citizens are not left helpless and prone to exploitation, which in the absence of specific bilateral or multilateral treaties can be done by resorting to the universal human rights as a means of ensuring compliance with international labour law norms. these considerations are extremely important because the deployment of migrant workers are not only limited in certain countries or region but it has widespread. moreover, in the future, bnp2tki will send indonesia migrant workers to australia in a sizeable numbers.55 in connection with that, it needs to mention the approach that is initiated by professor jennifer gordon, a prominent migrants’ human rights, which is based on transnational political citizenship theory. this proposal cannot be separated from disbelief on the effectiveness of traditional methods that emphasize on tightening the border as a result of the increased market demand at the global level. as a consequence, he proposed a merger between civic workers with citizenship against a country. this is evidenced by the emphasis on the importance of local labour organization so it must get more attention since they can receive membership of migrant workers56. in addition, a more significantly important feature in this proposal is to utilize the rights discourse as an enabling instrument for the achievement of policy goals. in other words, retrieved of migrants to maintain or defend its own interest, either in the recipient country or origin will become the main focus. this approach is intended to be able to move profits from “pander” to the migrant workers.57 4. efforts in domestic level his urging can show the dissatisfaction of president as the top management executive in indonesia on the issue of migrant workers for the formation of “early warning system” that is expected to respond all indonesia migrant workers’ problem faster.58 in other words, this pressure should be seen as confirmation of dissatisfaction on a system that has been existed. one of the problems on the protection of migrant workers that exists today can be said not in overlap authority which will lead to complexity. this overlap seems increasing over time. it considers there any possibility that each manpower and transmigration office in each district will have a task force team (satgas) such as policeman that is guarding against making 51 rene e. ofreneo dan isabelo a. samonte, “empowering filipino migrant workers: policy issues and challenges,” international migration papers, no. 62, jenewa: international labor office, (2004). 52 rene e. ofreneo dan isabelo a. samonte, op. cit., 3 53 the economist title waking from its sleep in edition july 25-31, 2009. 54 staci strobl, loc.cit. 55 http://bnp2tki.go.id/ content/view/1394/231/, loc.cit. 56 jennifer gordon, “transnational national labor citizenship,” southern california law review 80, (2007): 503. 57 http://www.law.berkeley.edu/files/gordon_transnatl_labor_final.pdf, accessed on may 3, 2019. 58 http://www.depkominfo.go.id/2009/06/11/presiden-bentuk-sistem-deteksi-dini-perlindungan-tki/, accessed on may 3, 2019. http://bnp2tki.go.id/%20content/view/1394/231/ http://www.law.berkeley.edu/files/gordon_transnatl_labor_final.pdf http://www.depkominfo.go.id/2009/06/11/presiden-bentuk-sistem-deteksi-dini-perlindungan-tki/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 117 indonesia migrant workers can go to a foreign country.59 because of irregularities construction of protection system for indonesia migrant workers, it starts with bnp2tki formation itself. instead of protecting, this regulation even is a scary monster that is increasingly encouraging indonesia migrant workers to abstain. in addition, the paternalistic approach that has been adopted towards indonesian migrant workers are not only detrimental for indonesia migrant workers economically, but also it has claimed their dignity as human beings. furthermore, this situation has been pushing to create side effects that are quite serious such as, sexual harassment, violence, extortion, heist, and fraud. in short, the right proverb that can describe this relationship with indonesia migrant workers is “backstabber”. in the beginning, bnp2tki initially intended to be a coordinating institution between agencies or related department. still, in progress, the institution is more active a role in the governing institution for the employment of indonesia migrant workers.60 moreover, bnp2tki has to get conflict with the department of manpower and transmigration. in addition, common understanding of the notion of migrant workers also vary, the ministry of social affairs is covering the indonesia migrant workers who work outside home areas that are still under the jurisdiction of indonesia government. 61 it has been confirmed by businessman’s association migrant workers placement service (himsataki) which requested that the ministry of manpower, bnp2tki, and department of foreign affairs cooperate. 62from that statement, we can conclude that the first issue is the issue of inter-agency coordination, and obviously, it is not resolved by the presence of bnp2tki. maze of authority has resulted in the implementation of ministerial coordination meeting for indonesia migrant workers that are problematic and conduct: decree of coordinating minister of people’s welfare no. 09/kep/menko/welfare/ iii / 2008 dated march 6, 2008, established the coordinating team for the return policy formulation indonesian manpower problems and their families from malaysia (fk-ptkib tk), which given the task within 30 days to: (1) coordinate the preparation of the budget repatriation task force operations indonesian labour problems and their families from malaysia for the financial year 2008 and 2009; (2) coordinate the formulation repatriation division of the indonesian labour problems and their families from malaysia between repatriation coordination team indonesia labour problems and families from malaysia (tk-ptkib) established by presidential decree no. 106 in 2004 the national agency for placement and protection of indonesian workers (bnp2tki) established through presidential regulation no. 81, 2006; (3) report the coordination and recommendations to the coordinating minister for people’s welfare and bnp2tki’s head.63 in summary, regarding the task of individual departments and institutions, the noticeable trends are as follows. 64 a. handling indonesia migrant workers, indonesia migrant workers’ candidate and problematic tki according to the sense of law no. 39 of 2004 on pptkln, the duty bnp2tki, in collaboration with relevant sectors and local governments. b. handling citizen (tki, tkib, and pm (i), pm (i) -bs) in a foreign country into the duty of ministry of foreign affairs through local indonesia’s embassy in the related country, in cooperation with bnp2tki, mosa, relevant sectors and local governments. 59 wawasan digital, nakertrans bentuk satgas perlindungan tki on http://www.wawasandigital.com/index.php?option=com_content&task=view&id=22826&itemid=34, accessed on may 3, 2019. 60 presidential regulation number 81 of 2006 concerning bnp2tki 61 http://www.menkokesra.go.id/pdf/deputi6/tkib_april2008.pdf, accessed on may 3, 2019. 62 thttp://kabarnusantara.com/ekonomi-a-bisnis/546-tki-perlu-perlindungan-secara-sistematis, accessed on may 3, 2019. 63 pardjoko midjan, pembagian tugas penanganan tki, loc.cit. 64 ibid. http://www.wawasandigital.com/index.php?option=com_content&task=view&id=22826&itemid=34 http://www.menkokesra.go.id/pdf/deputi6/tkib_april2008.pdf http://kabarnusantara.com/ekonomi-a-bisnis/546-tki-perlu-perlindungan-secara-sistematis synergising international labour laws and human … m. abdul, m. syaprin z, & david 118 this formulation is actually correct if we say as an affirmation of the commitment because the tasks have been there on their own. the thing to be noted is the possibility to emerge a tension between the department of labour and bnp2tki related to authority over aspects of the placement of the law no. 39 of 2004 (hereinafter: law of indonesia migrant workers) very “wet” from financial terms. other efforts that deserve to get serious attention is the adoption of the act which is currently can be regarded as a basic formulation national protection of migrant workers are also quite controversial.65 this act of indonesia migrant workers has been amended several times, the judicial review by the constitutional court either are filed by the sender (sponsor) or their parties66. in addition, the members of parliament also urged for the amendment to the act which deems migrant workers is less clear in services and protection for indonesia migrant workers. in the other hand, most of the human rights’ activists rejected the amendment without ratification cmw and references to it. during this confusion, we need to clarify related to the indonesia migrant workers’ act. the act is intended to be regulations on the placement and protection of migrant workers outside the country. this act also imposes a duty on the state to “provide protection to indonesia migrant workers during the prior period to departure, the placement period, and the period after placement.67 in addition, the act also stipulates the administrative, practical aspects that are comprehensive enough on departure stage of indonesia migrant workers.68 unlike, the previous issue that is the issue of protection of migrant workers in the act is not done elaborative. the issue of protection is only given by not in deep discussion not by using terms imperative.69 from all the facts above, it shows the actual understanding of protection for workers itself is still unclear. as a result, it is no wonder if, in practice, it happens confusion in it. the only effort that most rational to face standoff is to open opportunities that exist at the international level to get a complete picture on best practices in the management of migration. c. conclusion the problem that has always plagued the migrant workers cannot be separated from the chaotic policies and mechanism the protection that plague the domestic indonesian legal regime for the protection of tki. it is clear, for example, indicated by the absence of a longterm policy that has coherence and logical. all settlement adopted very ad hoc and unstructured with existing systems. from that one, one of the best ways is to try to ensure labour participation and benefits of globalisation in order to attain the economic development for the nation. exploiting opportunities outside does not mean our sovereignty diminished but rather as an effort to achieve more substantive effort. this can be interpreted as a political commitment from the government by learning and cooperating with the globalizing world to be more pragmatic by prioritizing the interests of the people as a form of democracy. in addition, an important finding that needs to be strengthened is related to issues of cultural relativism ever higher with asian values. it merely exists in the imagination of the elite. the problems are obstacles that sometimes in the form of rejection in the field of promotion of human rights in indonesia are more related to lack of retrieved it. in other words, the issue of ignorance rather than to religious values or culture is more instrumental in the creation of grassroots rejection. 65 http://www.bnp2tki.go.id/content/view/116/163/, accessed on may 3, 2019. 66http://www.mahkamahkonstitusi.go.id/putusan/ putusan_sidang_eng_putusan%20(019020)%20puu%20iii%202005%20(uu%20tki%20di%20luar%20negeri )%20-%20english, accessed on may 3, 2019. 67 article 7, law of manpower. 68 chapter iv, law of manpower. 69 chapter vi, law of manpower. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 119 the legal basis of the human rights act which explicitly recognizes the existence of a right to legal efforts at the international level has been duly made the parties concerned to no doubt take advantage of the international law. in short, the use of international forums on the issue, especially for the indonesia migrant workers, is one of the main features in the formation of a new national migration management paradigm that is based on human rights. the failure of the state adopt this approach will lead to open up possibilities for international accountability which is requested by the international community and by the citizens of indonesia. references a. journal aini, erika norliza’., et.al. “analisis penyelesaian sengketa partai solidaritas indonesia studi putusan badan pengawas pemilu kota bandar lampung nomor: 01.ps.reg.bwsl.bdl.08.01.vii.2018.,” cepalo 3, no. 2, 2019: 71-76, doi: 10.25041/cepalo.v3no2.1846. alston, philip., & weiler, j. h. h. “an ‘ever closer union’ in need of a human rights policy”, european journal of international law 9, no. 2, 1998: 658-723, doi: 10.1093/ejil/9.4.658. benvenisti, eyal. “reclaiming democracy: strategic uses of foreign and international law by national courts,” american journal of international law 102, no. 2, 2008: 241-274, doi: 10.2307/30034538. cleveland, sarah. “legal status and rights of the undocumented workers,” american journal of international law 99, no. 2, 2005: 460-465, doi: 10.2307/1562510. gordon, jennifer. “transnational national labor citizenship,” southern california law review 80, 2007: 503. ling, ceah whui. “migrant workers as citizens within the asean landscape: international law and the singapore experiment.” chinese journal of international law 8, no. 1, 2009: 205-231, doi: 10.1093/chinesejil/jmn041. lyon, beth. “discourse in development: a post-colonial ‘agenda’ for the united nations committee on economic, social, and cultural committee,” american university journal of gender social policy and law 10, 2003: 535, doi: 10.2139/ssrn.449301. ofreneo, rene e., & samonte, isabelo a. “empowering filipino migrant workers: policy issues and challenges.” international migration papers no. 62, jenewa: international labor office, 2004. pécoud, antoine., & deguchteniere, paul. “migration, human rights and the united nations: an investigation into the obstacles to the un convention on migrant workers’ right,” windsor yearbook of retrievedto justice 24, 2006: 241-244. simma, bruno. “universality of international law from the perspective of practitioner,” european journal of international law 20, no. 2, 2009: 265-297, doi: 10.1093/ejil/chp028. stein, eric. “international law and internal law: toward internationalisation of central-eastern european constitutions,” american journal of international law 88, no. 3, 1994: 427-450, doi: 10.2307/2203712. b. book https://doi.org/10.1093/chinesejil/jmn041 https://doi.org/10.1093/chinesejil/jmn041 https://doi.org/10.2139/ssrn.449301 https://doi.org/10.1093/ejil/chp028 https://doi.org/10.2307/2203712 synergising international labour laws and human … m. abdul, m. syaprin z, & david 120 archibugi, d. & held, d., eds. cosmopolitan democracy. an agenda for a new world order. cambridge: polity press, 1995. aust, anthony. handbook of international law. new york: cambridge university press, 2005. bauböck, r. “citizenship: international, state, migrant and democratic perspectives”. in globalizing migration regimes. avebury: ashgate, 2006. hanson, gordon h. the economic logic of illegal immigration. new york: council on foreign relations, 2007. donnelly, jack. universal human rights in theory and practice. ithaca: cornell university press, 2003. cook, rebecca. women’s rights in international law. philadelphia: university of pennsylvania press, 1994. alstons, philip. promoting human rights through bill of rights: comparative perspective. new york: oxford university press, 1999. plender, richard. basic documents on international migration law, leiden and boston: martinus nijhoff, 2007. c. internet http://bnp2tki.go.id/ content/view/1394/231/, accessed on may 3, 2019. http://www.nakertrans.go.id/news.html,253, accessed on may 3, 2019. http://www.cidh.org/annualrep/2002eng/chap.6.htm#i.%20%20%20%20%20%20%20%20in troduction, accessed on may 3, 2019. http://www.antara.co.id/view/?i=1199882713&c=nas&s=, accessed on may 3, 2019. kompas.com, tki tewas dianiaya majikan di arab saudi, accessed on may 3, 2019. http://www.amnestyusa.org/ document.php?id=engasa250072006&lang=e, accessed on may 3, 2019. http://www.menkokesra.go.id/pdf/deputi6/tkib_april2008.pdf, accessed on may 3, 2019. http://www.pikiran-rakyat.com/index.php?mib=news.detail&id=84352, accessed on may 3, 2019. http://www.pewglobal.org, accessed on may 3, 2019. http://www.pewglobal.org, accessed on may 3, 2019. p http://www.tempointeraktif.com/hg/nasional/2006/10/01/brk,20061001-85125,id.html, accessed on may 3, 2019. termsak chalermpalanupap, “10 facts about asean human rights cooperation,” in http://www.aseansec.org/hlp-otherdoc-1.pdf, accessed on may 3, 2019. http://kabarnusantara.com/ekonomi-a-bisnis/546-tki-perlu-perlindungan-secara-sistematis, accessed on may 3, 2019. http://www.majalahtrust.com/ekonomi/ keuangan/981.php, accessed on may 3, 2019. http://www.mahkamahkonstitusi.go.id/putusan/putusan_sidang_eng_putusan%20(019020)%2 0puu%20iii%202005%20(uu%20tki%20di%20luar%20negeri)%20-%20english, accessed on may 3, 2019. http://bnp2tki.go.id/%20content/view/1394/231/ http://www.nakertrans.go.id/news.html,253 http://www.cidh.org/annualrep/2002eng/chap.6.htm#i.%20%20%20%20%20%20%20%20introduction http://www.cidh.org/annualrep/2002eng/chap.6.htm#i.%20%20%20%20%20%20%20%20introduction http://www.antara.co.id/view/?i=1199882713&c=nas&s= http://www.amnestyusa.org/%20document.php?id=engasa250072006&lang=e http://www.menkokesra.go.id/pdf/deputi6/tkib_april2008.pdf http://www.pikiran-rakyat.com/index.php?mib=news.detail&id=84352 http://www.pewglobal.org/ http://www.pewglobal.org/ http://www.tempointeraktif.com/hg/nasional/2006/10/01/brk,20061001-85125,id.html http://www.aseansec.org/hlp-otherdoc-1.pdf http://kabarnusantara.com/ekonomi-a-bisnis/546-tki-perlu-perlindungan-secara-sistematis http://www.majalahtrust.com/ekonomi/%20keuangan/981.php http://www.mahkamahkonstitusi.go.id/putusan/putusan_sidang_eng_putusan%20(019020)%20puu%20iii%202005%20(uu%20tki%20di%20luar%20negeri)%20-%20english http://www.mahkamahkonstitusi.go.id/putusan/putusan_sidang_eng_putusan%20(019020)%20puu%20iii%202005%20(uu%20tki%20di%20luar%20negeri)%20-%20english 85 dispute settlement of anti-dumping legal aspect in indonesia based on gatt/wto provisions (allegations case study of dumping wood free copy paper between south korea and indonesia) idha mutiara sari badan perencanaan pembangunan daerah lampung, indonesia, email: idhamutiarasari@gmail.com submitted: may 5, 2020; reviewed: june 4, 2020; accepted: june 26, 2020 article info abstract keywords: wto, dispute, resolution, anti-dumping. doi: 10.25041/lajil.v2i2.2034 the increase of trading activities in economic globalization requires a strong international financial and trade system to distribute capital in the implementation of world trade. from the considerable problems in the globalization of trade, the international community has begun to draft several regulations that can be agreed together. therefore, there is a need for rules and regulations in international trade relations, in this case, an agreement realizing the role of gatt/wto as an international trade organization that determines and assists in resolving trade disputes between countries. legal issues will be discussed in this paper is, 1) how is the implementation of gatt / wto about antidumping law; 2) how is the implementation of antidumping law in indonesia; 3) what is the legal aspect of dispute resolution of the case study in the alleged dumping wood free copy paper case between south korea and indonesia. in this paper, the research method is normative legal research that accommodates regulations, decisions and general principles of (international-trade) law. the results discussed in this paper are the role of gatt/wto in dealing with anti-dumping in indonesia regulation and implementation of anti-dumping in its legal territorial area, and south korea’s anti-dumping case study on indonesia. conclusions from this paper include, indonesia must better to protect a regulation regarding antidumping measures by enforcing strong laws and other antidumping regulations. it is a legal urgency as an exportimport activity because in the implementation of international trade defence is not enough if a government decree regulates anti-dumping actions. still, it must continue to update the rules of the wto’s provisions which always develop. volume 2 issue 2, 2020: pp. 85-98. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:idhamutiarasari@gmail.com https://doi.org/10.25041/lajil.v2i2.2034 dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 86 a. introduction international trade integrated to free trade without territorial borders, without tariff and nontariff barriers will improve the welfare of the world community.1 salvatore stated that trade could be an engine for economic growth.2 market access and market dominance of the state is one of the benefits that will become a trend for business people in the era of free trade.3 according to syahyu (2014), the tendency of international trade patterns that lead to free trade impacts competition on market access.4 international trade law is a rapid field of line law with the current globalization.5 a stable financial system or international market is a necessity in the era of globalization.6 regarding economic growth is the tendency to made trade relations patterns directly between every country, whether bilateral, regional or multilateral, conditions which reinforce the importance of international treaties.7 advances in telecommunications and information technology are to support globalization and free trade. it expanded the space for the flow of trade transactions.8 in free trade era has several obstacles in a trade process, one of which is deception in trading, breach of contract (default), losses and injustice trading does not fulfil the supposed quota (unfair). result of the violations in the world of trade, the countries also think about the rules which can be agreed together between every country, so there is a need for provisions and rules governing world trade. to run well international trade, smoothly and mutually beneficial, the international community has established an international legal instrument in the field of international trade.9 then a general agreement on tariffs and trade (gatt) was formed, which was agreed by every country in 1947, which includes an international legal rule concerning the implementation of international trade in every country.10 gatt was completed through various rounds of negotiations which had been carried out eight times until 1986.11 the last round of negotiations was the uruguay round (1986-1994) which resulted in the establishment of the world trade 1 atih rohaeti dariah, “perdagangan bebas : idealisme dan realitas”, mimbar: jurnal sosial dan pembangunan 21, no. 1 (2005): 115-126, 115, doi: 10.29313/mimbar.v21i1.167. 2 jimmy hasoloan, “peranan perdagangan internasional dalam produktifitas dan perekonomian”, edunomic, jurnal ilmiah pend. ekonomi 1, no. 2 (2013): 102-112, 102. 3 gatoet s. hardono, handewi p.s. rachman, dan sri h. suhartini, “liberalisasi perdagangan: sisi teori, dampak empiris dan perspektif ketahanan pangan”, forum penelitian agro ekonomi 22, no. 2 (2004): 75-88, 80, doi: 10.21082/fae.v22n2.2004.75-88. 4 yulianto syahyu, hukum anti dumping di indonesia, analisis dan panduan praktis (jakarta, ghalia indonesia, 2014), 8. 5 a. kumedi ja’far, “pengaruh globalisasi terhadap pembangunan hukum ekonomi di indonesia”, asas 2, no. 2 (2010): 15-27, 17. 6 rafiqul islam, international trade law (nsw: lbc, 1999), 1. 7 huala adolf, hukum perdagangan internasional: prinsip-prinsip dan konsepsi dasar, (bandung: rajawali pers, 2004), 2 8 veris septiansyah, “perlindungan hukum terhadap konsumen dalam perdagangan barang dan bisnis investasi melalui transaksi elektronik (e-commerce)”, jurnal nestor magister hukum 4, no. 4 (2017): 1-12, 6. 9 revy s. m. korah, “prinsip-prinsip eksistensi general agreement on tariffs and trade (gatt) dan world trade organization (wto) dalam era pasar bebas”, jurnal hukum unsrat 22, no. 7 (2016): 44-52, 44. 10 prawitra thalib, “implikasi prinsip most favoured nation dalam upaya penghapusan hambatan pedagangan internasional”, yuridika 27, no. 1 (2012): 35-46, 38, doi: 10.20473/ydk.v27i1.286. 11 nopirin, “akuntan publik dalam era perdagangan bebas”, jurnal ekonomi dan bisnis indonesia 12, no. 2 (1997): 1-12, 3. https://doi.org/10.29313/mimbar.v21i1.167 http://dx.doi.org/10.21082/fae.v22n2.2004.75-88 http://dx.doi.org/10.20473/ydk.v27i1.286 http://dx.doi.org/10.20473/ydk.v27i1.286 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 87 organization (wto) on january 1, 1995. then the wto as an international organization was implementing and overseeing the rules of world trade.12 the world trade organization (wto) has the aim of encouraging free trade so that together they compete openly, orderly and fairly.13 it is stated in the principles underlying the gattwto is the principle of non-discrimination or the principle of most favored nations in the form of treatment of goods sold on world markets.14 according to wil d. verwey that principle is rooted in the philosophy of western liberalism known as the trinity, namely freedom (equality), equality, and the principle of reciprocity (reciprocity),15 these three principles are the pillars of the 1974 gatt legal norms. in carrying out its authority and functions, gatt/wto plays a role in overseeing trade activities, one of which is dumping. dumping occurs when imported products are sold at a lower price than the prevailing market price.16 dumping is a type of price discrimination which is not always to blame. the wto does not prohibit dumping, or in other words, dumping is not something that is prohibited.17 however, if it is proven to be detrimental to the economy of another country, then it can be blamed, and an extra tariff called the antidumping duty or anti dumping import duty (bmad)18 the goods concerned to compensate for the difference between normal prices and dumping prices. however, it should be noted. several conditions must be met before bmad can be imposed on dumped products.19 anti-dumping in indonesia is regulated in the gatt anti dumping code (1994) which is officially agreement on implementation of article vi of gatt 1994.20 one of the articles of gatt (1994) known as article vi gatt is specifically regulated anti-dumping under the title agreement on implementation of article vi of the gatt 1994 which contains 18 articles in 3 chapters including two annexes therein. indonesia itself, by referring to article 18 paragraph 4 of the antidumping code (1994), has tried to take several positive steps towards indonesian trade law by issuing law no.10 of 1995 concerning customs which was later revised to law no. 17 of 2006.21 specifically, this regulation has adopted the provisions of antidumping in the purposes of chapters iv articles 18 to 20 with the title antidumping import duty and import duty. furthermore, to strengthen the law, government regulation no. 34 of 1996 concerning antidumping import duty, republic of indonesia government regulation no. 34 of 2011 12 syahmin ak, hukum dagang internasional (dalam kerangka studi analitis) (jakarta, raja grafindo persada, 2007), 12. 13 jamilus, “analisis fungsi dan manfaat wto bagi negara berkembang (khususnya indonesia)”, jikh 11, no. 2 (2017): 205-225, 206, doi: 10.30641/kebijakan.2017.v11.205-225. 14 fx joko priyono, “prinsip most favoured nations dan pengecualiannya dalam world trade organizations (wto)”, mmh 42, no. 4 (2013): 593-600, 593, doi: 10.14710/mmh.42.4.2013.593600. 15 sukarmi, regulasi anti dumping di bawah bayang-bayang pasar bebas (jakarta, sinar grafika, 2002), 103. 16 meliyani sidiqah, “retaliasi indonesia atas tuduhan dumping terhadap korea selatan”, jurnal wawasan yuridika 3, no. 1 (2019): 78-99, 80, doi: 10.25072/jwy.v3i1.207. 17 nita anggraeni, “dumping dalam perspektif hukum dagang internasional dan hukum islam”, mazahib 14, no. 2 (2015): 159-168, 163, doi: 10.21093/mj.v14i2.344. 18 antidumping duty is called anti dumping import duty (bmad) by government regulation number 34 of 1996 concerning anti dumping import duty and import duty. 19 government regulation no. 34/1996 uses the term "dumping goods" for dumped goods (dumped products). 20 yulianto syahyu, “hukum antidumping di indonesia dari perspektif ketahanan industri dalam negeri”, jurnal keamanan nasional 5, no. 1 (2019): 47-64, 51, doi: 10.31599/jkn.v5i1.420. 21 azmi syahputra, “pertanggung jawaban pidana terhadap tindak pidana penyeludupan”, jurnal ilmu hukum fakultas hukum riau 4, no. 1 (2013): 1-21, 3, doi: 10.31289/mercatoria.v8i1.641. http://dx.doi.org/10.30641/kebijakan.2017.v11.205-225 https://doi.org/10.14710/mmh.42.4.2013.593-600 https://doi.org/10.14710/mmh.42.4.2013.593-600 http://dx.doi.org/10.25072/jwy.v3i1.207 https://doi.org/10.21093/mj.v14i2.344 https://doi.org/10.31599/jkn.v5i1.420 https://doi.org/10.31289/mercatoria.v8i1.641 dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 88 concerning antidumping actions, rewards actions, trade security measures.22 meanwhile, article 1 number 6 of the law concerning prohibition of monopolistic practices and unfair business competition, namely law number 5 of 1999.23 unfair competition or unfair trade practice is the competition between business actors in carrying out production and or marketing activities of goods and/or services conducted dishonestly or illegally or hampering business competition.24 one action is often referred as unfair trade practice in the international business world is dumping. in gatt’s perspective the general form of unfair trade practice in question is a dumping problem.25 business competition is not uncommon for unfair competition, both in determining tariffs and non-tariff. an example is in the form of prices, price discrimination known as dumping. dumping is a form of non-tariff trade barriers. responding to anti-dumping cases from examples of dumping cases that occurred in indonesia, which is a member of the wto, also included developing countries, among others, among south korea accusing indonesia of dumping woodfree copy paper to south korea. indonesia suffers a substantial loss, which the south korean government imposed antidumping import duty (bmad) of 2.8 per cent, but the indonesian government won a dispute against south korea at the world trade organization (wto) forum. indonesia is suing the south korean government, where south korea has violated the terms of the wto agreement on antidumping in imposing anti-dumping measures on indonesian paper products.26 the gatt perspective in the general form of the unfair trade practice in question is a dumping problem.27 this is because dumping extensive losses to producers, namely the narrowing of the market share of producers, in this case, the host country. dumping also hurts micro-businesses in importing countries, especially for importing countries which are still included in developing country qualifications.28 based on the background, the authors are interested in conducting a study of “dispute settlement of anti-dumping legal aspect in indonesia based on gatt/wto provisions (allegations case study of dumping wood free copy paper between south korea and indonesia)”. the problems examined as legal issues in this paper are 1) how is the application of gatt / wto anti-dumping law; 2) how is the application of anti-dumping law in indonesia; 3) what is the legal aspect of dispute resolution of the case study of the dumping wood free copy paper case between south korea and indonesia. this study uses normative case studies (normative law research) or library law research29 in the form of legal behaviour results, for 22 dharamjit kaur, “kebijakan pemerintah indonesia dalam penerapan bea masuk antidumping terhadap produk impor tekstil dari negara india ditinaju berdasarkan undang undang nomor 7 tahun 1994 tentang pengesahan agreemetnt establishing the world trade oragization”, jom fakultas hukum 1, no. 2 (2014): 1-15, 4. 23 ni wayan anggita darmayoni, i gede yusa, “merger terkait dengan indikasi penguasaan pangsa pasar menurut undang-undang nomor 5 tahun 1999 tentang larangan praktek monopoli dan persaingan usaha tidak sehat”, kertha semaya 5, no. 1 (2017): 1-5, 3. 24 christin octa tiara, “indikasi persaingan usaha tidak sehat dalam aspek tata niaga perdagangan sapi impor”, masalah-masalah hukum 46, no. 4 (2017): 343-348, 344, doi: 10.14710/mmh.46.4.2017.343-348. 25 ida bagus wyasa putra, aspek-aspek hukum perdata internasional dalam transaksi bisnis internasional (bandung: refika aditama, 2008), 11 26 https://bisnis.tempo.co/read/68752/indonesia-menangkan-sengketa-melawan-korea-di-wto, accessed on may 9, 2019. 27 ida bagus wyasa putra, aspek-aspek hukum perdata internasional dalam transaksi bisnis internasional (bandung: refika aditama, 2008), 11. 28 http://agrimedia.mb.ipb.ac.id/uploads/doc/2010-07-06, accessed on november14, 2018. 29 desia rakhma banjarani et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on https://doi.org/10.14710/mmh.46.4.2017.343-348 https://bisnis.tempo.co/read/68752/indonesia-menangkan-sengketa-melawan-korea-di-wto http://agrimedia.mb.ipb.ac.id/uploads/doc/2010-07-06 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 89 example, discussing positive law that applies at this time. the main problem is the law applied as a concept of norms or rules that apply in society and become a reference for everyone’s behaviour. this type of research is a descriptive study that aims to describe in detail, clearly and systematically the dispute settlement of anti-dumping legal aspect in indonesia based on gatt/wto provisions (allegations case study of dumping wood free copy paper between south korea and indonesia). b. discussion 1. role of the general agreement on tariffs and trade (gatt) / wto in the application of antidumping laws the things contained in the gatt give every member state the obligation to protect themselves in every activity, and the policies for international trade.30 legal regulations in gatt also prioritize the principle of fair business competition. to deal with the practices of subsidies on exports and dumping that harm the domestic industry, a legal regulation was made to provide legal certainty that applies to the participant countries in the general agreement on tariffs and trade (gatt) to eliminate unhealthy trade practices, in order to realize the trade situation international fair. provisions regarding anti-dumping are regulated since the gatt was agreed in 1947. the rules regarding anti-dumping are regulated in article vi of the gatt, which is then expected to be implemented in the national legal system of each member incorporated in the general agreement on tariffs and trade gatt. the implementation of the anti-dumping provisions is contained in the agreement on implementation of article vi of gatt 1994, which was formulated through the uruguay round and known as the 1994 antidumping code. the provisions of article vi of the gatt are as follows: “the contracting parties recognize that dumping, by which products of one country are introduced into one commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry anti-dumping” important points are submitted by the general agreement on tariffs and trade (gatt) prohibiting an anti dumping act, namely the practice of dumping carried out by every country that applies the principle of economic less than the fair value which is considered to cause material harm to the industry importer country. the intended action includes:31 a. dumping is used as an economic principle. it is less than fair value; b. prevent losses actions for importing state; c. the existence of a causal link between the price and the losses of dumping. these three elements conditions must be met to be able for the anti-dumping beam. related to the implementation the rule of gatt, member countries in the framework of anti-dumping policies in their respective countries, they are regulated in the 1994 agreement on implementation of article vi of gatt or what is referred to as the 1994 anti dumping code. anti dumping code aims to provide legal certainty, and concrete limitations regarding anti dumping import duties, so overprotective measures in the use of anti-dumping instruments are not used as a protective device (self-protective) which is only beneficial for industries in the country. international law (case study of the iraq and syria conflict),” cepalo 3, no. 1 (2019): 11–18, 14, doi: 10.25041/cepalo.v3no1.1789. 30 ibid, 65. 31 suci hartati, “anti-dumping dalam konsep hukum di indonesia”, cermin 47, (2010): 1-10, 3. https://doi.org/10.25041/cepalo.v3no1.1789 dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 90 the anti-dumping action itself applies as stipulated in gatt 1994, namely when there is low sales in the domestic market or the absence of similar products in the local market in an exporting country due to certain market conditions. the difference in dumping will be agreed by comparison with the comparative tariff of the type of production when exported to each third country. the same kind of product referred in article ii agreement on implementation of article vi of the gatt 1994 is the same product in all aspects with other products even though it does not resemble all aspects but which has close characteristics to the product under consideration. the determination of loss in article vi of the gatt 1994 is based on any positive evidence that involves an objective test of:32 a. value or amount of imported dumping tariff products and their impact on the applicable tariffs in the domestic market for similar products; b. import impacts for domestic producers are to produce imported products of similar origin from each country are simultaneously subject to anti-dumping investigations. the government who has the authority to investigate, they have cumulatively plan which affect these imports; and c. the difference in import dumping from each country is more than deminism as regulated in paragraph (8) of article 5 of the agreement on implementation of article vi of the gatt 1994; the initial and follow-up investigation according to article 5 of the agreement on implementation of article vi of the gatt 1994 is an investigation to determine the effect of every dumping allegation that begins with the application of the domestic industry. in special circumstances, an authorized official may make the decision to start an investigation without receiving a written request in the country to begin an investigation. if you have sufficient evidence about dumping, losses and causality, as set out in paragraph (2), it is justified to start an investigation.33 according to article 6 of the agreement on implementation of article vi of the gatt 1994, each party who has an interest in conducting anti-dumping investigations will be notified of the information. it is needed by authority and also allowed to submit any explicit evidence that deemed important to a study. in article 7 of the agreement on implementation of article vi of the gatt 1994, temporary measures can be taken if: a. an investigation has been carried out in accordance with the provisions of article 5 of the agreement on implementation of article vi of the gatt 1994, namely the act of public notification that has been given to interested parties, so they have sufficient time to submit information and provide comments; b. the initial stipulation of dumping regarding the cause and the effect of losses in the domestic industry has been determined; the parties who have the authority to consider an action, it is needed to prevent losses arising during the investigation stage.34 the cases of anti-dumping import duties decisions are meet the requirements by the result of decisions that have been considered by the competent authorities. application of the results decision applies to all members, and it is expected to be sufficient and eliminate losses to the domestic industry. anti-dumping duties will always apply only as long as is needed to deal with dumping that can cause losses.35 the application of anti-dumping import duty aims to stop domestic industry losses which are considered as an act that should have been taken if it has been determined related to the imposition of anti-dumping import duties with billing records 32 ak syahmin, hukum dagang internasional, cet 1 (depok: raja grafindo persada, 2006), 309. 33 ibid., 311. 34 ibid., 312 35 ibid., 313 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 91 must not be discriminatory. retribution must be made to all related parties in importing dumping, which causes losses, and it is recommended to use the lowest margin dumping.36 the amount of anti-dumping import duty cannot exceed the difference between the dumping tariff and the normal price (dumping margin). the normal value in question is the actual rate paid or will be paid for similar goods in the exporting country’s domestic market for consumption purposes. exports of the company’s goods may be subject to anti-dumping import duties in importing countries with a maximum value of margin dumping, which is the difference between the normal tariff in the domestic market and the export tariff for the next five years and can be extended for another five years. article 9 of the general agreement on tariffs and trade (gatt)/wto regulates the imposition of anti-dumping import duties. this article explains the procedures for determining anti-dumping import duties, which include the authority for determining the number of anti-dumping import duties. the provisional measures and anti-dumping import duties will only apply to products after the decision is made by paragraph 1 article 7 and paragraph 1 article 9 of the general agreement on tariffs and trade (gatt) / wto and come into force with exceptions as provided in article 10.37 there are several other important provisions relating to the imposition of anti-dumping import duties, namely: a. anti-dumping duties are only valid for against or balancing the dumping itself.38 b. the involved parties have the right to ask the competent authorities in the country that have imposed anti-dumping import duties to examine whether such anti-dumping import duties still need to be applied to balance dumping. if the anti-dumping import duty is no longer needed, it must be revoked immediately.39 c. to support the rights of the parties involved in the review of the imposition of anti-dumping import duties, each member country of the general agreement on tariffs and trade (gatt) / wto must have a tribunal that can conduct a judicial review of the policy regarding the imposition of anti-dumping import duties.40 when considering the application of anti-dumping import duties, development countries must give special consideration. development countries are expected to be able to give consideration on the possibilities of using a better solution before applying anti-dumping duties which are feared to harm the main interests of developing countries.41 2. application of antidumping law in indonesia indonesia’s dependence on international trade as a driving force for the national economy is quite large.42 as a member country of the general agreement on tariffs and trade (gatt) / wto, indonesia has ratified the agreement establishing the wto with law number 7 of 1994 (state gazette of 1994 number 57, supplement to state gazette number 3564) concerning the application of agreement establishing the world trade organization (agreement on the establishment of the world trade organization). by ratifying the agreement establishing the wto, indonesia as a whole has also ratified the antidumping code (1994) which is part of the multilateral trade agreement. indonesia’s participation in the general agreement on tariffs and trade (gatt) / wto provides consequences for indonesia 36 christhophorus barutu, ketentuan antidumping, subsidi, dan tindakan pengamanan (safe guard) dalam gatt dan wto, cet 1 (bandung: citra aditya bakti, 2007), 51. 37 ibid. 38 article 11 (1) antidumping code 1994. see jackson jh, et al, document supplement tolegal problems of international economic relations (st. paul, minn: west publishing co, 1995), 190 39 article 11(2) antidumping code 1994. ibid. 40 article 13 antidumping code 1994. ibid., 192. 41 article 15 antidumping code 1994. ibid., 193. 42 suci safitriani, “perdagangan internasional dan foreign direct investment di indonesia”, buletin ilmiah litbang perdagangan, 8, no. 1 (2014): 93-116, 94, doi: 10.30908/bilp.v8i1.89. https://doi.org/10.30908/bilp.v8i1.89 dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 92 to adjust the outcome of the agreement. it is adjusted to the conditions and situation of indonesia, but until now, indonesia does not have anti-dumping provisions in the form of a law. indonesia only inserts anti-dumping provisions in law number 10 of 1995 (statute book of the republic of indonesia number 75 of 1995, supplement to statute book of the republic of indonesia number 3612) regarding customs which has been amended to law number 17 of 2006 (statute book of the republic of indonesia 2006 number 93) concerning changes to law number 10 of 1995 concerning customs. indonesia further regulation is regulated by government regulation number 34 of 1996 concerning anti-dumping import duty of amendment. it has been amended to government regulation number 34 of 2011 concerning antidumping actions, rewards actions and trade security measures. then the implementing regulations were issued in the form of minister of industry and trade decisions. the government regulation is a form of the consistency indonesian government in implementing dumping provisions as a member of the general agreement on tariffs and trade (gatt) / wto. but overall, government regulation number 34 the year 2011 regarding anti-dumping actions, reward actions and trade safeguard measures, unfortunately, does not regulate the substance in detail but rather regulates its procedures. anti-dumping in indonesia is regulated in government regulation no. 34 of 1996 concerning antidumping import duty. according to this regulation, dumping is goods which imported with an export price level lower than the normal value in the exporting country.43 in contrast, the normal value is the price actually paid or will be paid for similar goods in an exporting country.44 the definition of dumping, according to the government regulation, is different from the definition in article vi of the general agreement on tariffs and trade (gatt) / wto. dumping, according to this government regulation only covers the sale of goods in importing countries are less than the normal price in the exporting country. meanwhile, according to article vi of the general agreement on tariffs and trade (gatt) / wto, dumping also includes sale goods in importing countries is less than normal prices in third countries or sale in importing countries is less than the cost of producing goods concerned in the origin country. it is added to the transaction costs and profits. however, there is no requirement for a member country to follow the dumping definition according to the provisions in the general agreement on tariffs and trade (gatt) / wto. for the scope of free trade in the limited government regulation, is more profitable. it is because government regulation will release imported goods in the prices are below the fair price at the third countries and/or below production costs. but what needs to be considered is this position is beneficial or detrimental to the producer’s interests in the state of indonesia. therefore, it still needs to be reviewed. the term “material injury” according to article vi of the general agreement on tariffs and trade (gatt) / wto rules is not used in the government regulation. this regulation uses the term “loss” which includes: 45 a. losses of domestic industry with producing similar goods; b. the threat of domestic industry loss with produces similar goods; or c. the development of the similar goods industry in the country is hampered. domestic industry can be defined as a whole of domestic producers of similar goods whose production represents the majority (more than 50%) of the total production of the goods concerned “.46 however, the definition of domestic industry, in the word of “loss” in government regulation has not yet reached the “material injury” standard according to the antidumping code 1994. according to this code, to determine “material injury” there must be 43 article 1 (1) government regulation no. 34/1996. 44 article 1 (3) government regulation no.34/1996. 45 article 1 (11) government regulation no. 34/1996. 46 article 1 (8) government regulation no. 34/1996. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 93 strong evidence that shows the value of dumping imported goods has increased significantly, and the dumping goods have significantly reduced the prices of similar goods, and it must be proven that the dumping goods have decrease sales, profits, output, market share, productivity, investment by domestic producers. in addition, there must be a causal link between dumping goods and injuries. it means that dumping goods must contribute to the loss. the intended loss is not only caused by other factors and so on.47 by not using the condition of “material injury” and by only using the condition of “losses”, it means that government regulation provides relief about the conditions that must be met before the imposition of anti-dumping import duties can be done. for example, this government regulation does not include causal link requirements.48 disclosure of causal links between dumping and injuries that occur is not easy to do. government regulation no. 34 of 1996 concerning antidumping import duty is the purpose of avoiding this difficulty by not referring to the problem of causal relations between dumping actions and losses. however, in practice, the causal link requirement has been used by the government before imposing antidumping import duty. for example, the application for imposing anti dumping import duty for synthetic fibre products from korea and taiwan was rejected by the government because no causal link was found between dumping and injury experienced by producers of similar goods in indonesia. the government also did not accept the anti dumping petition for coated writing and printing paper products from korea and finland because there was no causal relationship between dumping goods and injuries suffered by domestic producers for similar goods.49 3. legal aspects of indonesian anti-dumping dispute resolution (case study of south korea’s allegations to indonesia dumping woodfree copy paper and antidumping cases of imported wheat from turkey by the indonesian wheat flour producers association) according to wto provisions at the time of ratification of law no. 7 of 1994 concerning the agreement on establishing the world trade organization (wto) then indonesia has been officially integrated into an international trade system and every country complies with wto legal regulations. therefore, the state has an impact on a new era known as the economic globalization in which a country is in a national state even to other countries. in international trade, economic globalization brings the impact of the loss of national boundaries in the meaning of conventional trade which is changed by a legal system that guarantees trade processes based on equity, fairness and reciprocity. therefore, to protect the trading system, it still adheres to the existing rules (on the track) as the presence of the dispute settlement body (dsb) as a supervisor in the dispute resolution process in the gatt. after legally being a member of the world trade organization (wto), business actors in a wto country is ready to compete fairly and partner with other countries’ producers which should be accompanied by full awareness of the risk of collisions in the trade of each country. it means the involved country is ready to require if there is a trade dispute involving each country, both as a plaintiff or defendant. a. cases of dumping allegations between south korea and indonesia 47 indeed the standard provisions in the 1994 antidumping code are high because it is made more based on existing practice in the united states, although the standard is lower than the standard conditions for the use of safeguards according to article xix gatt. richard o. cunningham, “sovereignty revisited: settlement of international trade disputes – challenges to sovereignty – a us perspective” can.u.s. l. j, 103, no. 24 (1998): 103-119, 112. 48 even in practice, kadi uses it. 49 http://www.investorindonesia.com/baru/displaynews.php?id=1101783561, accessed on november 30, 2019. https://scholarlycommons.law.case.edu/do/search/?q=author_lname%3a%22cunningham%22%20author_fname%3a%22richard%22&start=0&context=5534335 http://www.investorindonesia.com/baru/displaynews.php?id=1101783561 dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 94 indonesian companies that get dumping suspicion are pt. indah kiat pulp tbk, pt. pindo deli, pt. tjiwi kimia tbk, and april fine paper trading ltd. for anti-dumping allegations have been filed by several companies to the korea trade commission (ktc), the organization then applied bmad to 16 types of paper products produced at the four indonesian paper companies on may 9, 2003. whereas in resolving that case, indonesia requested to ask for wto dispute settlement body (dsb) help with the aim to south korea’s anti-dumping procedures be reviewed because they were deemed not to accordance with several articles points related to the agreement. in article 6 and other articles were ignored, and indonesia also requested the panel related to article 19 of understanding on rules and procedures of the governing the settlement of disputes (dsu) to ask south korea to act in accordance with the general agreement on tariffs and trade (gatt) agreement and cancel the anti-dumping policy on paper imports which was put in place by the minister of finance and economy on november 7, 2003. in this case, as a legal aspect is an emergence of the world trade organization (wto) agreement denial, article specifically on trade agreements and tariff provisions as stated in the general agreement on tariffs and trade (gatt). the legal provisions can be seen by the existence of retaliation by the indonesian government, because south korea is considered to have committed fraud or defaults, by not doing the results of the panel’s decision. on the other hand, the dispute settlement body (dsb) determined that this paper dumping case was won by the state of indonesia, where retaliation was allowed in the world trade organization (wto). the secretary of the directorate general of international trade cooperation, which is a subdivision of the ministry of trade, stated in the panel of dispute settlement body (dsb) decision in november 2005 that south korea was obliged to carry out the calculation of margin dumping on paper commodities from indonesia. therefore, south korea was given time to carry out the maximum of eight months after the issuance of the decision or ended in july 2006. the dispute settlement body (dsb) considered that south korea had made a mistake in an effort to prove the practice of paper dumping from indonesia. south korea has to recalculate the dumping margins according to the results of the panel, so that indonesia’s paper exports to south korea are less than two per cent or deminimistic so they cannot be subject to anti dumping import duty. the decision of the permanent panel is the highest panel in the world trade organization (wto), if the decision of the permanent panel has also not been followed by south korea, indonesia can retaliate efforts, namely by retaliating for losses suffered by indonesia. in retaliation, indonesia can apply import duties on certain products from south korea with the same loss value during the application of anti-dumping import duty (bmad). korean trade commission (ktc) is a south korean dumping authority for imposing anti-dumping import duty (bmad) 2.8 8.22% for four paper companies. pt tjiwi kimia paper factory, pt pindo deli pulp & paper mills, pt indah kiat pulp & paper, and pt april fine since november 7 2003. in the accusation, the korean trade commission (ktc) has set margins of paper dumping from indonesia to reach 47.7 per cent. the paper products applied in antidumping import duty are plain paper copier and undercoated wood free printing paper. in this matter, indonesia has efforts to approach according to procedures to south korea. on october 26, 2006, indonesia also sent a letter of consultation submission. then, the consultation was held on november 15, 2006, but no avail. south korea still has yet recalculated, and the south korean meeting is considered to slow time. south korea’s actions are very detrimental to the paper industry in indonesia. paper exports to south korea experienced a loss deficit of up to 50 per cent from the us $ 120 million. the impact of the loss lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 95 will be prolonged because the panel also takes a long time, at the fastest three months and a maximum of six months. indonesia ultimately won the south korean-indonesian dumping case. c. conclusions in implementing anti-dumping law, indonesia is through national legal sovereignty. it begins with the enactment of pp no. 34 of 2006 concerning antidumping import duty. the anti-dumping solution uses the wto provisions in connection with research on the dumping indonesia case with another country. the author take attention in south korea (dumping paper), it can be concluded in the first case that the practice of dumping paper in indonesia has made efforts to approach procedures according to south korea, but south korea has not recalculated, and south korea is stalling in completing the case process. this action is very detrimental to the indonesian paper industry. paper exports to south korea fell by 50 per cent from the us $ 120 million, and in the end, the korean-indonesian dumping case was won by indonesia. recommendation indonesia advised making a strong shield related to anti-dumping measures with all antidumping regulations. it is not enough if anti-dumping is only regulated by a government decree or even government regulations, it is important because as a defence procedure for international trade, besides to continuously optimize the provisions of the rules international trade in indonesia with the provisions of the wto. indonesia also must continue their efforts to voice the interests of the state and nation in international forums, because as one of the country’s economic drivers, the trade sector needs special attention from the government. in anticipation of the increasing reason of regulations issued by export destination countries for indonesian products such as health protection, consumer protection, or environmental preservation, but solely to conduct trade protection, the government must be more protective in protecting domestic products by strengthening import duties on goods import. references a. journal anggraeni, nita. “dumping dalam perspektif hukum dagang internasional dan hukum islam”, mazahib 14, no. 2, 2015: 159-168, doi: 10.21093/mj.v14i2.344. banjarani, desia rakhma et al., “perlindungan terhadap wartawan perang di daerah konflik bersenjata menurut hukum internasional (studi kasus daerah konflik irak dan suriah) protection of war reporters in armed conflict areas based on international law (case study of the iraq and 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antidumping legal aspect in indonesia … idha mutiara sari 96 hardono, gatoet s., p. s. handewi., rachman, & suhartini, sri h. “liberalisasi perdagangan: sisi teori, dampak empiris dan perspektif ketahanan pangan”, forum penelitian agro ekonomi 22, no. 2, 2004: 75-88, doi: 10.21082/fae.v22n2.2004.75-88. hartati, suci. “anti-dumping dalam konsep hukum di indonesia”, cermin 47, 2010: 1-10. hasoloan, jimmy. “peranan perdagangan internasional dalam produktifitas dan perekonomian”, edunomic, jurnal ilmiah pend. ekonomi 1, no. 2, 2013: 102-112. jamilus. “analisis fungsi dan manfaat wto bagi negara berkembang (khususnya indonesia)”, jikh 11, no. 2, 2017: 205-225, doi: 10.30641/kebijakan.2017.v11.205-225. kaur, dharamjit. “kebijakan pemerintah indonesia dalam penerapan bea masuk antidumping terhadap produk impor tekstil dari negara india ditinaju berdasarkan undang undang nomor 7 tahun 1994 tentang pengesahan agreemetnt establishing the world trade oragization”, jom fakultas hukum 1, no. 2, 2014: 1-15. korah, revy s. m. “prinsip-prinsip eksistensi general agreement on tariffs and trade (gatt) dan world trade organization (wto) dalam era pasar bebas”, jurnal hukum unsrat 22, no. 7, 2016: 44-52. kumedi, a. ja’far, “pengaruh globalisasi terhadap pembangunan hukum ekonomi di indonesia”, asas 2, no. 2, 2010: 15-27. nopirin. “akuntan publik dalam era perdagangan bebas”, jurnal ekonomi dan bisnis indonesia 12, no. 2, 1997: 1-12. priyono, fx joko. “prinsip most favoured nations dan pengecualiannya dalam world trade organizations (wto)”, mmh 42, no. 4, 2013: 593-600, doi: 10.14710/mmh.42.4.2013.593-600. safitriani, suci. “perdagangan internasional dan foreign direct investment di indonesia”, buletin ilmiah litbang perdagangan, 8, no. 1, 2014: 93-116, doi: 10.30908/bilp.v8i1.89. septiansyah, veris. “perlindungan hukum terhadap konsumen dalam perdagangan barang dan bisnis investasi melalui transaksi elektronik (e-commerce)”, jurnal nestor magister hukum 4, no. 4, 2017: 1-12 sidiqah, meliyani. “retaliasi indonesia atas tuduhan dumping terhadap korea selatan”, jurnal wawasan yuridika 3, no. 1, 2019: 78-99, doi: 10.25072/jwy.v3i1.207. syahputra, azmi. “pertanggung jawaban pidana terhadap tindak pidana penyeludupan”, jurnal ilmu hukum fakultas hukum riau 4, no. 1, 2013: 1-21, doi: 10.31289/mercatoria.v8i1.641. syahyu, yulianto. “hukum antidumping di indonesia dari perspektif ketahanan industri dalam negeri”. jurnal keamanan nasional 5, no. 1, 2019: 47-64, doi: 10.31599/jkn.v5i1.420. thalib, prawitra. “implikasi prinsip most favoured nation dalam upaya penghapusan hambatan pedagangan internasional”, yuridika 27, no. 1, 2012: 35-46, doi: 10.20473/ydk.v27i1.286. tiara, christin octa. “indikasi persaingan usaha tidak sehat dalam aspek tata niaga perdagangan sapi impor”, masalah-masalah hukum 46, no. 4, 2017: 343-348, doi: 10.14710/mmh.46.4.2017.343-348. b. book http://dx.doi.org/10.21082/fae.v22n2.2004.75-88 http://dx.doi.org/10.21082/fae.v22n2.2004.75-88 http://dx.doi.org/10.30641/kebijakan.2017.v11.205-225 http://dx.doi.org/10.30641/kebijakan.2017.v11.205-225 https://doi.org/10.14710/mmh.42.4.2013.593-600 https://doi.org/10.30908/bilp.v8i1.89 http://dx.doi.org/10.25072/jwy.v3i1.207 https://doi.org/10.31289/mercatoria.v8i1.641 https://doi.org/10.31599/jkn.v5i1.420 http://dx.doi.org/10.20473/ydk.v27i1.286 https://doi.org/10.14710/mmh.46.4.2017.343-348 lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 97 christhophorus, barutu. ketentuan antidumping, subsidi, dan tindakan pengamanan (safe guard) dalam gatt dan wto. bandung: citra aditya bakti, 2007. huala, adolf. hukum perdagangan internasional : prinsip-prinsip dan konsepsi dasar. bandung: rajawali pers, 2004. ida, bagus wyasa putra. aspek-aspek hukum perdata internasional dalam transaksi bisnis internasional. bandung: refika aditama, 2008. jackson, jh. document supplement tolegal problems of international economic relations. st. paul, minn: west publishing co, 1995. rafiqul, islam. international trade law. nsw: lbc, 1999. sukarmi. regulasi antidumping di bawah bayang-bayang pasar bebas. jakarta: sinar grafika, 2002. syahmin, ak. hukum dagang internasional (dalam kerangka studi analitis). jakarta: raja grafindo persada, 2007. yulianto, syahyu. hukum anti dumping di indonesia, analisis dan panduan praktis. jakarta: ghalia indonesia, 2014. c. regulation government regulation number 34 of 1996 concerning anti-dumping import duty and import duty benefits d. internet http://agrimedia.mb.ipb.ac.id/uploads/doc/2010-07-06, accessed on november14, 2018. http://www.investorindonesia.com/baru/displaynews.php?id=1101783561, accessed on november 30, 2019. https://bisnis.tempo.co/read/68752/indonesia-menangkan-sengketa-melawan-korea-di-wto, accessed on may 9, 2019. http://agrimedia.mb.ipb.ac.id/uploads/doc/2010-07-06 http://www.investorindonesia.com/baru/displaynews.php?id=1101783561 https://bisnis.tempo.co/read/68752/indonesia-menangkan-sengketa-melawan-korea-di-wto dispute settlement of antidumping legal aspect in indonesia … idha mutiara sari 98 67 the functions and importance of representation of states in their relations with international organizations of a universal character gregorius sri nurhartanto universitas atma jaya yogyakarta, indonesia, e-mail: snurhartanto@gmail.com submitted: jul 20, 2022; reviewed: aug 22, 2022.; accepted: sept 26, 2022 article info abstract keywords: international organization of a universal character, states representation, cooperation. doi: 10.25041/lajil.v4i2.2666 the development of international relations have rapidly since the signing of westphalia treaty in 1648. the relationship are not only between states but also by public international organizations (inter governmental organizations). after the second world war, the establishment of the united nations and its specialized agencies and other organs has encouraged the intensive of international cooperation and the making of treaties as a source of international law. the united nations and its special agencies and other organs is often called as an international organization of a universal character. both states members and non-states members establish cooperation with this universal international organization. the existence of state representation in a universal international organization with a universal character is very important for strengthening the cooperation between states and international organizations. a. introduction international relations have developed rapidly since the signing of the treaty of westphalia in 1648. the international treaty intended to end the thirty-year war is often cited as a milestone for modern international law and the emergence of the modern state system in europe.1 in generally, international relations are based on the interests of state, but the interests of two states alone cannot accommodate the will of many states. in order to achieve of common interests, states develop the international organizations. by forming international organizations, states will try to achieve the goals of common interest, and these interests involve a very broad field of international life.2 since the middle 17th century, the development of international organizations has been increasing rapidly. it has not only been manifested in various international conferences, but that it has been institutionalized in various models: commissions, unions, council, league, association, united-nations, commonwealth, community, cooperation, and others.3 the 1 j.g., starke ,1984, introduction to international law, ninth edition , london: butterworths, p.11-12. 2 sumaryo suryokusumo,1990, hukum organisasi internasional, jakarta : penerbit universitas indonesia (ui press), p.1. 3 ibid. p.2. volume 4 number 1, july-december 2022: pp. 67-80. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil the functions and importance … gregorius sri nurhartanto 68 progressive development of international organizations, it naturally encourages the dynamics of existing international relations. the process of developing the international organization has created legal norms relating to the international organization itself, which forms an agreement called the basic instrument or constituent instrument. thus, the contribution of international organizations to the development of international law is very important. the position of international organizations as subjects of international law is nowadays no longer in doubt, although at the beginning it was uncertain. international organizations such as the united nations and the specialized agencies have rights and obligations according to international conventions, even at the beginning no confirmation that the united nations and similar organizations are legal subjects of international law. after the international court of justice gave an advisory opinion in the case of reparation of injuries4, since 1949 the position of the united nations and the specialized agencies, as legal subjects according to international law became clear. the increasing role of multilateral diplomacy in international relations between states as well as the responsibilities of the united nations and its specialized agencies in the international community, it gives the impact that many countries are eager to get close cooperation with international organizations of universal character. although it must be acknowledged that there are other types of international organizations like regional organizations such as the european union (eu), african union (au), organization of american states (oas), association of south east asia nations (asean) etc., whose play their role and give the contribution to the development of international law continuously and make a regional stability.5 but it was acknowledged that the role of universal international organizations can be said to be the greatest. this cooperation is not only with international organizations, but also with other states who are members of these international organizations, especially in the context of achieving common goals. this is in line with the purpose and principles of the united nations charter which highly upholds the equality of sovereignty of each country, in the context of maintaining international peace and security and encouraging cooperation and friendly relations between states, example: to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.6 the appointment of state representatives in international organizations of universal character such as the united nations is evidence of efforts of state members joining the organization to be seriously strengthening the cooperation among themselves in line with the goals of the organization. in fact, it is believed that the appointment of representatives of these states will further enhance friendly relations and cooperation between them regardless of the political, economic and social systems of the state members. 7 novelty in this study is to find 4 in this advisory opinion, the general assembly request the international court of justice whether or not the united nations has the legal capacity to a claim for compensation against the de jure or de facto government. in its conclusion, the international court of justice views that international organizations as subjects of international law have international rights and obligations, and have the right to international claims. see further reparations for injuries suffered in the service of the united nations (advisory opinions), icj report 1949. see also mochtar kusumaatmadja, etty r.agoes, 2003, pengantar hukum internasional, bandung: alumni, p. 102-103. 5 deidre m.curtin., “european legal integration : paradise lost?” , said the ultimate goal of the eu (previously the ec) may always have been political (ever closer union among the peoples of europe), its immediate objectives economic and social, but the means and the techniques use to achieve it have traditionally been ‘legal’: the application and progressive development of common rules and enforcement procedures. deidre m.curtin, et.al, 2006, european integration and law, antwerpen-oxford : intersentia-metro,p.1. 6 see article 1 point (3), un charter. see d.w. bowett, 1982. the law of international institutions, fourth edition, london: stevens & sons, p. 23. 7 see the preamble of 1975 vienna convention, believing that an international convention on the representation of states in their relations with international organizations of a universal character would contribute to the lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 69 out the function of state representatives in a country in relation to international organizations, besides this research will analyze the privileges and immunities of a country related to diplomatic. initially, the appointment of state representatives in international organizations was based on customary international law and in its development, it is seen not enough. at the beginning of the establishment of the united nations, general assembly (ga) as the main organ of un developed an international law commission was support the duties of ga. this commission for thirty years (in periodic 1949-1979) has explored 27 topics and subtopics of international law, and seven of them are related to diplomatic law and related issues, including the relationship between states and international organizations. these topics are recommended to be codified because there have been many problems involving diplomatic law, including the provisions governing the establishment of diplomatic missions, consular missions, special missions, prevention and punishment of crimes against internationally protected persons, including diplomatic agents, etc.8 concerning the area of relationship between state with international organizations, it has been successfully codified into 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. this convention was used as the basis for regulating the posting of state representatives in relation to international organizations of a universal character, although it is possible that the rules of customary international law continue to govern questions not expressly regulated by the provisions of the present convention.9 according to government indonesia, this convention is very important for giving a special protection for the representatives of another states was posted in indonesia, particularly for strengthening the collaboration with international organizations who open or established the permanent secretariat or branch office in jakarta. based on introduction, in this paper, several issues are raised: 1. what is the kinds and functions of state representation in international organizations of a universal character? 2. do state representatives who are accredited to international organizations of a universal character enjoy the privileges and immunities rights? 3. how does an international organization of a universal character guarantee the privileges and immunities rights? b. discussion 1. international organizations of a universal character international organization means an intergovernmental organization and international organization of a universal character means the united nations, its specialized agencies, the international atomic energy agency and any similar organization whose membership and responsibilities are on a worldwide scale.10 sumaryo suryokusumo emphasized that international organizations of a universal character give more opportunities to their members as widely as possible regardless the states are big or small, strong or weak, and the principle of perfect equality of state is an important factor and the members have the same voting rights.11 the united nations and the specialized promotion of friendly relations and cooperation among states, irrespective of their political, economic and social systems. 8 sumaryo suryokusumo,1995, hukum diplomatik teori dan kasus, bandung: penerbit alumni, p.11-12. 9 see preamble of 1975 vienna convention, affirming that the rules of customary international law continue to govern questions not expressly regulated by the provisions of the present convention. 10 see article 1, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 11 sumaryo suryokusumo,1993, studi kasus hukum organisasi internasional, bandung: penerbit alumni, p.4748 the functions and importance … gregorius sri nurhartanto 70 agencies can be classified in this type of organization.12 henry g. schremer provides general criteria or characteristics for universal international organizations as follows:13 a. universality, the universal international organization operates in a wide scale of activities. this organization usually will not provide severe requirements for its membership and not imposing sanctions to expel its members. b. ultimate necessity, these organizations concern in various aspects of international life and needed by all countries such as weather, shipping, aviation and others. this organization is more technical as like as the united nations special agencies. c. heterogeneity, the members of organizations will have different views both in politics, economic levels and different cultures. in its heterogeneous, states member have a large and small population but they will have the same voting rights. according to sumaryo suryokusumo, an international organization always has three aspects, namely: administrative aspects, philosophical aspects and legal aspects.14 a. the administrative aspect concerns to the need of establishment a permanent secretariat whose location is in the territory of its member states which is determined through an agreement between the international organization and the host state (headquarters agreement). in addition, it is also necessary to have personnel staffs as international civil servants. in carrying out their duties, they will not obtain or receive instructions from any government or from any other authority outside the organization. they should limit themselves to take actions that could affect their position as international civil servants and only responsible to the organization. b. philosophical aspects, the establishment of international organizations will be influenced by the philosophy of life of the nations in the certainty area. likewise, the issues of peace or other themes can be used for the basis establish of the international organization. c. legal aspects, international organizations are formed through an agreement from three or more states as parties. an organization is essentially a unit which is legally separated from every other organization and consists of one or more bodies. these bodies are a collection of various powers grouped under one name. the international agreement to establish the international organization is a constituent instrument that consist of the principles and purposes, structure and working systems of the organization. in some international organizations is possible to act as a law-making body (treaty-making powers) that create the principles of international law in various legal instruments. every international organization, including the international organization of a universal character according to leroy bennett15, has the following characteristics: a. a permanent organization to perform a set of functions, b. membership is voluntary character, c. have the main instrument (constituent instrument) that contain the purposes, structure and systems of the organization, d. have an assembly body, e. have a permanent secretariat that carries out administrative, research and information functions. 12 in the un system the position of all members are equal. today totally members of un are 193 independence states. 13 henry g. schremer, 1980, international institutional law, netherlands, rockvilemaryland,usa : sijthoff & noordhoff,p.21-22. 14 sumaryo suryokusumo, 1993,op.cit.p.49-51 and see sumaryo suryokusumo, 1990, op.cit.p.8. 15 leroy bennet,a.,1979, international organization, london: prentice hall,inc.p.3. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 71 referring to the matters as described before and taking into account the provisions of the 1975 vienna convention on the representation of states in their relations with international organizations of a universal character, the united nations and the united nations special agencies are the most ideal examples for explore as universal international organizations. the united nations as a successor of the league of nations is an international organization established by the charter produced at the san francisco conference in 1945 based on proposals made at dumbarton oaks.16 the united nations charter was signed on june 26, 1945 is the constituent instrument of the organization and its consist of various aspects, both concerning of the purposes, principles, membership (including the conditions)17, organs of the united nations18, including the statute of international court of justice. malcolm n shaw said that the charter of the united nations is not only the multilateral treaty which created the organization and outlined the rights and obligations of those states signing it, it is also the constitution of the un, laying down its functions and prescribing its limitations.19 in chapter i article 1 of un charter stated purposes of the united nations are: 1. to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. to be a center for harmonizing the actions of nations in the attainment of these common ends. according to f. sugeng istanto, based on article 1 of un charter can be said that the purposes of un are:20 a. maintaining peace and security; b. developing friendly relations between nations; c. seeking international cooperation to solve economic, social, cultural and humanitarian issues as well as to promote and encourage respect for human rights and basic human freedoms; d. harmonizing the actions of nations in achieving these common purposes. 16 d.w.bowett, loc.cit.p.23. 17 see article 4, un charter. 18 see chapter iii article 7 and chapter iv, un charter. 19 malcolm n. shaw. 2003. international law. fifth edition. new edition the leading textbook. cambridge university press. cambridge. p.1083 20 f.sugeng istanto, 1994, hukum internasional, yogyakarta: penerbit universitas atma jaya yogyakarta, p.129130. see m.n.shaw, 1991, international law, third edition, melbourne: grotius publications, cambridge university press, p.748. the functions and importance … gregorius sri nurhartanto 72 furthermore bursan tsani said that for maintaining international peace and security, the united nations also has a duty and function to prevent world wars, united nations also plays a role in the development and implementation of international humanitarian law.21 in order to fulfill the administrative aspect, the united nations has also made an agreement on the existence of a permanent secretariat with the united states of america government, this agreement namely the united nations headquarters in new york city, united states of america. likewise, in the legal aspect, the organs of the united nations, both the main organs such as general assembly, security council, and other organs as well as the special agencies, have produced many international legal instruments, including the codification of international law. thus, the united nations also belongs the criteria for legal personality as noted by ian brownlie:22 1. permanent association of states, with lawful objects, equipped with organs; 2. a distinction, in terms of legal powers and purposes, between the organization and its member states 3. the existence of legal powers exercisable on the international plane and not solely within the national systems of one or more states. in the area of taking legal actions as stated in point 3, ian brownlie furthermore explained that it was indicated by:23 a. making international agreements (the treaty making power), although not all constituent instruments provide direct authority for international organizations to make international agreements, sometimes it can be interpreted from the existing constituent instruments as a whole based on the doctrine of implied powers (infra). united nations can make the trusteeship agreements24, as well as agreements in relationship to the specialized agencies25, including headquarters agreements with its member states as well as cooperation with other international organizations. b. having the rights of privileges and immunities, international organizations always have the right of privileges and immunities concerning security, assets, headquarters, and representatives of states member accredited to the organization. c. having the capacity to espouse international claims, as has happened in the reparation case decided by the international court of justice d. functional protection of agents and persons entitled through them, this can be seen in the killings of the united nations mediator count folke bernadotte and his aide colonel serot who were carrying out their duties during the disputed palestinian territories in 1948.26 e. locus standi before international tribunals, the united nations, through its organs, can apply for an advisory opinion to the international court of justice.27 f. having responsibility, the united nations can expand its functions other than making treaties, carrying out administrative functions in certain territories, using armed forces (in the function of force keeping or peace keeping) and providing technical assistance. g. carrying out administrative functions in certain areas h. having the right to carry out organizational missions or activities in the territory of its member countries 21 mohd.burhan tsani, 2003, peran pbb dalam perkembangan dan implementasi hukum humaniter internasional, edisi khusus,mimbar hukum, majalah fakultas hukumugm, nomor 44/vi/2003, p.1. 22 ian brownlie, 1985, principles of public international law. third edition, oxford: clarendon press, p.679. 23 ibid, p.681-686. 24 see chapter xii, un charter. 25 see article 57 and 63, un charter. 26 the case was occurred in 1948 got a response from un secretary general trygve lie as "a very grave and unprecedented insult to the authority and dignity of the united nations". see sumaryo suryokusumo, 1990, op.cit.p.120-128. 27 see article 33, un charter juncto chapter iv article 65, statute of international court of justice. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 73 i. getting recognition from states member. 2. the representation of states to international organizations of a universal character based on the purpose of the united nations in the charter of united nations, the activities to carry out by the united nations and the special agencies are so numerous. in generally, the activities will bring benefits to states member and even non-states member. in order to establish a harmonious relationship, states will send their representatives and accredited to international organization of a universal character. based on 1975 vienna convention on the representation of states in their relations with international organizations of a universal character, the representation of states are grouped into two types, namely: a. permanent mission means a mission of permanent character, representing the state, sent by a state member of an international organization to the organization;28 b. permanent observer mission means a mission of permanent character, representing the state, sent to an international organization by a state not a member of the organization.29 regarding of state representatives in international organizations of a universal character, both of the status of the permanent mission and the permanent observer mission sent by sending state, the international organization will notify the host state where the headquarter or permanent secretariat is located.30 the difference of status of state missions accredited to international organizations of a universal character brings consequences for the mission function itself. the functions of the state representatives are classified into: 1. the function of the permanent mission as stated in article 6 of the 1975 vienna convention on the representation of states in their relations with international organizations of a universal character are: a. ensure the representation of the sending state to the organization; b. maintaining liaison between the sending state and the organization; c. negotiating with and within the organization; d. ascertaining activities in the organization and reporting thereon to the government of the sending state e. ensure the participation of the sending state in the activities of the organization; f. protecting the interests of the sending state in relation to the organization; g. promoting the realization of the purposes and principles of the organization by cooperating with and within the organization. sri setianingsih suwardi stressing that the functions and duties of the permanent mission in an international organization are different with a diplomatic mission. the main duties of permanent mission to international organizations is to coordinate national representatives in various organs in international organizations. permanent mission act as a service center for national activities in international organizations where it has accredited.31 28 see article 5 paragraph 1, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 29 see article 5 paragraph 2, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. a permanent observer mission sent by non-state members as the consequences that not all countries in the world could be members of the united nations, this is caused these states are considered unable to fulfil the conditions in article 4 of the united nations charter, these states are often referred to be micro-states. 30 see article 5 paragraph 3, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 31 sri setianingsih suwardi, 2004, pengantar hukum organisasi internasional, jakarta : penerbit universitas indonesia, p.217 the functions and importance … gregorius sri nurhartanto 74 2. the function of the permanent observer mission as stated in article 7 of the 1975 vienna convention on the representation of states in their relations with international organizations of a universal character are: a. ensuring the representation of the sending state and safeguarding its interests in relation to the organization and maintaining liaison with it; b. ascertaining activities in the organization and reporting thereon to the government of the sending state; c. promoting co-operation with the organization and negotiating with it. the sending state may accredit the same person as head of mission to two or more international organizations of a universal character or appoint a head of mission as a member of the diplomatic staff of another of its missions.32 the sending state may accredit a member of the diplomatic staff of the mission as head of mission to other international organizations or appoint a member of the staff of the mission as a member of the staff of another of its missions.33 this phenomenon can be said as the multiple accreditation or appointment in the international organization law. in generally, the person who will be accredited to international organizations of a universal character, a state government has the freely to appoint them. the size of the mission shall not exceed what is reasonable and normal, having regard to the functions of the organization, the needs of the particular mission and the circumstances and conditions in the host state.34 the sending state has an obligation to notify the host state the arrival or returning of mission members to international organizations. besides a permanent mission or permanent observer mission, a state is possible to send a delegation to attend in a conference organized by an international organization's organ. the provisions of sending a delegation to attend conferences organized by international organizations are in line with the provisions on the state representatives to international organization. it is concerns both the size of delegation, their arrival and departure and the composition of the delegation. 3. the privileges and immunities of international organizations a. the privileges and immunities of organizations international organizations as subjects of international law have an international personality is always supported with the privileges and immunities rights. these rights are not only granted to the organization but also to the officials of the international organization. in 1946, the united nations adopted the convention on the privileges and immunities of the united nations which was accepted by general assembly on 13 february 1946, this convention to explore the provision of article 105 of the united nations charter. this organizations, in the territory of each member, enjoy the privileges and immunities rights to achieve their goals. these privileges and immunities rights are also applied for special agencies based on the convention on the privileges and immunities of specialized agencies which accepted by general assembly on november 21, 1947.35 the privileges and immunities rights are similar to diplomatic and consular missions as a whole. basically, the purpose of privileges and 32 see article 8 paragraph 1, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 33 see article 8 paragraph 2, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 34 see article 14, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 35 boer mauna, 2005, hukum internasional, pengertian peranan dan fungsi dalam era dinamika global, edisi ke-2, bandung: alumni, p.498 lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 75 immunities contained in the present convention is not to benefit individuals but to ensure the efficient performance of their functions in connection with organizations and conferences, but also to achieve the goals of the organization. international organizations will also enjoy the privileges and immunities rights not only concern to the inviolability of the headquarters or permanent secretariat only, but also includes archives, documents, freedom of communication and exemption from all taxation of the receiving state.36 in addition, international organizations also have an immunity from jurisdiction of the receiving state. this is very important for international organizations to be free from the domestic court jurisdiction of the receiving state as stated in the second chapter of the un convention above.37 b. the privileges and immunities of officials the status of international organization officials are derive from the international organization in the host state. both of them would be said to be international civil servants, because they are fully working for international organization. privileges and immunities rights granted to international organization staffs have the basic reasons as granted to organizations. the privileges and immunities rights for international organization staffs to ensure the efficient performance of their functions in connection with the host state and to achieve the goals set by the organization.38 in order to explore the provisions of article 104 and article 105 of un charter, the united nations has made several headquarter agreements with the united states, netherlands, switzerland and austria where there are un headquarters or offices. in the headquarter agreement between the dutch government and the international court of justice (icj), it has been specifically regulated the privileges and immunities rights enjoyed by international judges and other persons related to the work and duties of the court, for example: registrar.39 the united nations also made treaties for the granting of privileges and immunities in non-member countries, such as the interim arrangement agreed by united nations with the government of switzerland on july 1, 1946.40 the arrangement not only contained provisions regarding the explicit recognition of legal personality united nations in geneva, but including the privileges and immunities of the building and also for representatives of states members and international civil services who are working there.41 the international organization officials enjoy immunity rights, especially immunity from local courts, from the activities carried out in the official functions. however, the immunity can be waived by the organization itself. these officials also have fiscal immunity, which is exempt from paying the taxes on their salaries. in fact, within the global framework for the experts appointed by the organization's subsidiary organs, also enjoy privileges rights as decided by the icj.42 4. the privileges and immunities of the representation of states to an international organizations of a universal character a. permanent missions and permanent observer missions based on article 1 point (7), 1975 vienna convention on the representation of states in their relations with international organizations of a universal character stated that 36 sumaryo suryokusumo,1995,op.cit.p.70 37 boer mauna, op.cit.p.499 38 ibid.p.500 39 sumaryo suryokusumo, 1990,op.cit.p.115 40 the arrangement signed between un with the government of switzerland before to be state member of un. starting in 1990, switzerland become the un members in 2002. see www.un.org 41 sumaryo suryokusumo, 1990,op.cit.p.116 42 boer mauna,op.cit.p.501 http://www.un.org/ the functions and importance … gregorius sri nurhartanto 76 permanent mission means a mission of permanent character, representing the state, sent by a state member of an international organization to the organization. in article 1 point (8), 1975vienna convention stated permanent observer mission means a mission of permanent character, representing the state, sent to an international organization by a state not a member of the organization. for supporting their function, the head of mission and the staff members of permanent mission or permanent observer missions will be granted with privileges and immunities rights. the privileges and immunities rights for state representatives is not detail regulated in the headquarter agreement between the united nations and the united states of america government, but in the interim arrangement agreed between the switzerland government and the united nations on july 1, 1946, it explicitly states the granting of privileges and immunities rights for representatives of states member. likewise, in the agreement signed between the united nations and the government of the republic of austria on april 13, 1967 regarding the existence of the unido headquarters in vienna, it has provided the immunities and privileges rights for the representatives of its members, including permanent representatives of states members.43 the privileges and immunities rights are consists of the mission as a whole and the individual as applicable to diplomatic mission and the staffs in general. basically, the host state in cooperation with the organization will guarantee and assist all the facilities for the purpose of the mission, namely; assisting in providing mission locations, residences and accommodations for its staff member. permanent missions of the sending state shall have the right to use the national flag and emblem of their state, although it should be in harmony with the laws, regulations, and usages of the host state.44 the privileges and immunities rights enjoyed by the mission, in generally are immunity of premises, immunity of archives and documents and the privilege of exemption from taxation, freedom of movement and freedom of communication.45 the personal immunities enjoyed by personal are exempt from criminal, civil and administrative jurisdiction of the host state, immunities for his residence and property.46 the privileges rights are exempt from the regulations of social security and services, all taxes and levies, customs inspection and all forms of inspection in the host state.47 the privileges and immunities enjoyed by the mission and its officers of the sending state, in the application of it shall due to respect the provisions of the laws and regulations of the host state and must not be used in any manner incompatible with the functions of the mission. the other fundamental thing is the prohibition for heads of missions and members of missions to carry out professional activities as stated in article 39 of the 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. b. delegations to organs and to conferences a state may send a delegation to an organ or to a conference in accordance with the rules of the organization. delegation means, as the case may be, the delegation to an organ or the delegation to a conference. delegation of state can be divided into: 43 sumaryo suryokusumo, op.cit.p.115-116 44 see article 19, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 45 see articles 23,24,25,26, and 27, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 46 see articles 28, 29 and 30 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 47 see articles 32, 33, 34 and 35, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 77 1. delegation to an organ means the delegation sent by a state to participate on its behalf in the proceedings of the organ; 2. delegation to a conference means the delegation sent by a state to participate on its behalf in the conference; 3. observer delegation means, as the case may be, the observer delegation to an organ or the observer delegation to a conference. the sending of delegation to an organ, to the conference or observer is fully the authority of the state government by taking into account the rules that applicable within the organization, including the size of members of the delegation that must always be reasonable and normal, in line with the goals and functions of the organs and conferences. when sending its delegation, the state shall notify the organization regarding its composition, arrival and departure from the sending state. this notification is important because the organization will forward it to the host state.48 in order to support the functions of the state delegation, the privileges and immunities rights are also granted. the host state will assist and guarantee all facilities are needed for supporting the functions, including the exercise of privileges and immunities rights. the privileges and immunities rights are:49 1. premises of delegations will be exempted from host state taxes; 2. immunities of archives and documents; 3. freedom of movement or travel; 4. freedom of communication; 5. personal immunities from the criminal, civil and administrative jurisdiction of the host state, including not being arrested or detained. 6. exempt from the host state social security provisions as well as social service duties; 7. exempt from all levies and taxes; 8. exempt from customs inspection or other inspections. article 69 of 1975 vienna convention stressing the privileges and immunities the functions of the head of delegation or of any other delegate or member of the diplomatic staff of the delegation shall come to an end, inter alia: 1. on notification of their termination of the mission by the sending state to the organization or the conference; 2. upon the conclusion of the meeting of the organ or the conference. c. observer delegations to organs and to conferences the role of international organizations as subjects of international law becomes important in international communities, it is why non-state members try to make close relations with the organization. the model of relationship was done by sending a delegation of observers to the organization's organs or to the conferences in accordance with the rules of the organization. in 1975 vienna convention the status of observer divide into two categories:50 1. observer delegation to an organ means the delegation sent by a state to participate on its behalf as an observer in the proceedings of the organ. 2. observer delegation to a conference means the delegation sent by a state to participate on its behalf as an observer in the proceedings of the conference. 48 see chapter iii, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 49 see articles 51-65, 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 50 see articles 1 points (13) and (14), 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. the functions and importance … gregorius sri nurhartanto 78 members of the observer delegation will enjoy privileges and immunities in the performance of their function, including if they are members of a diplomatic or consular mission, they will also enjoy privileges and immunities under the 1975 vienna convention. for supporting the implementation of privileges and immunity rights for state delegates (permanent mission, permanent observer mission or delegates to organs and delegates to conferences and observer delegations), it is necessary to have mutual cooperation between the sending state and the host state, especially regarding the immunity of premises or residence, the properties and personal immunity. for this reason, all existing delegates have an obligation to respect all laws and regulations in the host state, including must not be used in any manner incompatible with the functions of the mission as laid down in the present convention or by other rules of general international law or by any special agreements in force between the organizations and the host state. d. conclusion referring to the legal issues and analysis, the conclusions are: 1. the representation of state in their relations with international organizations of a universal character can be grouped into three types, namely: a. permanent mission sent by a state member and permanent observer mission sent by a state not a member of the organization. b. delegation to an organ in the proceedings of the organ; delegation to a conference to participate on its behalf in the conference; and observer delegation to a conference. c. observer delegation to an organ and observer delegation to a conference in generally, the function of representations of states in their relations with international organizations of a universal character are strengthening the cooperation between states and international organizations and for non-state members are giving the benefits to their states related to the activities of these international organizations. 2. based on the agreements made by the united nations or the specialized agencies and state member regarding the existence of headquarter or permanent secretariat, the international organizations, international civil servants and representations of states who are accredited to international organizations are granted the privileges and immunities rights like diplomatic mission. 3. the implementation of the privileges and immunities rights granted by the host state based on bilateral treaty between the organization and the host state and its needed supporting by the organizations, the sending state and the host state. references a. book and journal books: bennet, a., leroy.,1979, international organization, london: prentice hall,inc. boer mauna, 2005, hukum internasional , pengertian peranan dan fungsi dalam era dinamika global, edisi ke-2, bandung: alumni bowett, d.w., 1982, the law of international institutions, fourth edition, london: stevens & sons. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, july-december 2022 e-issn: 2723-2603 79 brownlie, ian., 1985 , principles of public international law,third edition, oxford : clarendon press f.sugeng istanto, 1994, hukum internasional, yogyakarta: penerbit universitas atma jaya yogyakarta. m.curtin, deidre .et.al, 2006, european integration and law, antwerpen-oxford: intersentia -metro. mochtar kusumaatmadja, etty r.agoes, 2003, pengantar hukum internasional, bandung: alumni. mohd.burhan tsani, 2003, peran pbb dalam perkembangan dan implementasi hukum humaniter internasional, edisi khusus,mimbar hukum, majalah fakultas hukumugm, nomor 44/vi/2003. schremer, henry g. ,1980, international institutional law, netherlands, rockvilemaryland,usa, nijthoff & noordhoff. shaw. malcolm n., 2003. international law, fifth edition. new edition the leading textbook. cambridge university press. cambridge. ------------------------., 1991, international law, third edition. melbourne: grotius publications, cambridge university press. sri setianingsih suwardi, 2004, pengantar hukum organisasi internasional, jakarta: penerbit universitas indonesia starke, j.g.,1984, introduction to international law, ninth edition , london: butterworths. sumaryo suryokusumo,1995,hukum diplomatik teori dan kasus, bandung: penerbit alumni. ----------------------------,1993, studi kasus hukum organisasi internasional, bandung: penerbit alumni ----------------------------,1990, hukum organisasi internasional, jakarta : penerbit universitas indonesia (ui press). journal: antonio augusto cancado trindade, 2007. the humanization of consular law: the impact of advisory opinion no. 16 (1999) of the inter-american court of human rights on international case-law and practice. chinese journal of international law, vol. 6, no. 1. 2007. christian j. tams, 2002. consular assistance: rights, remedies and responsibility: comments on the icj’s judgment in la grand case. the european journal of international law vol. 13 no.5 © ejil 2002 craig forcese, 2006. the capacity to protect: diplomatic protection of dual nationals in the ‘war on terror’. the european journal of international law vol. 17 no.2 © ejil 2006 duan jie long , 2007. statement on diplomatic protection, international liability for injurious consequences arising out of acts not prohibited by international law. chinese journal of international law, vol. 6, no. 1. 2007 han-ru zhou, 2006. the enforcement of arrest warrants by international forces from the icty to the icc. journal of international criminal justice 4 (2006), doi:10.1093/jicj/mqi086_oxford university press, 2006 michael plachta, 2001. the lockerbie case: the role of security council in enforcing the principle aut dedere aut judicare. european journal of international law vol. 12 no.1 © ejil 2001. the functions and importance … gregorius sri nurhartanto 80 salvatore zapala, 2001. do a heads of state in office enjoy immunities for jurisdiction international crimes? the gadhafi before the french cour de cassation. the european journal of international law vol. 12 no.3 © ejil 2001. sienho yee, 2003. foreign sovereign immunities, ada jure imperil and ada jure gestionis: a recent exposition from the canadian supreme court. chinese journal of international law, vol. 12, no. 1. 2003. b. regulation the united nations, charter of the united nations and statute of the international court of justice, new york: department of public information. 1975 vienna convention on the representation of states in their relations with international organizations of a universal character. 1961 vienna convention on diplomatic relations. c. internet https://www.un.org http://www.un.org/ 69 southeast asia regional cooperation on tackling marine plastic litter febryani sabatira lampung sweeping community, indonesia, email: febbysabatira14@gmail.com submitted: april 29, 2020; reviewed: may 14, 2020; accepted: june 2, 2020 article info abstract keywords: marine, plastic, litters, cooperations, asean. doi: 10.25041/lajil.v2i2.2033 the sea covers 70% of the earth and is the source of livelihood for people all over the world. it is estimated that each year 6-12 million tons of plastic are dumped into the ocean. in the southeast asian region, the concentration of marine plastic litter in the ocean has reached a severe level. six out of the 10 asean countries are listed on the top 20 of countries ranked by mass of the mismanaged plastic waste. various legal instruments and supporting programs have been developed. however, the existence of these instruments and programs have not had a significant impact on combating marine plastic litter. this study aims to find out how a regional community can conquer the severe pollution of our oceans. this research uses normative legal analysis with secondary data sources and literature study techniques. the result of the research showed asean initiated the regional cooperation amongst southeast asia states in combating marine plastic litters as the competent regional organisation that carried out through institutional frameworks and subsidiary working groups, which have enacted two regional soft-law instruments, namely the bangkok declaration on marine debris and the asean framework for action on marine debris. a. introduction the ocean is a traditional source of food and livelihood for lots of people all over the world. unfortunately, 6 to 12 million metric tonnes of plastic waste is estimated to enters the ocean per year and causing the marine environment to be polluted massively by the existence of plastic waste.1 plastic waste has been a problem in the marine environment since the 1970s; however, only recently has it been identified as a global problem.2 plastic waste is one type of pollutants 1 m. haward, “plastic pollution of the world’s seasand ocean as contemporary challenge in governance”, nature communications 9, no. 1 (2018): 1-3, 1, doi: 10.1038/s41467-01803104-3. 2 d. xhantos, t. r. walker, “international policies to reduce plastic marine pollution from single-use plastic”, elsavier journal 118, no. 1-2 (2019): 17-26, 17, doi: 10.1016/j.marpolbul.2017.02.048. volume 2 issue 2, 2020: pp. 69-84. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:febbysabatira14@gmail.com https://doi.org/10.25041/lajil.v2i2.2033 southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 70 that harms the environment due to the durability of the plastic that persisted for years without being degraded or decomposed in the marine ecosystem.3 one type of plastic made from polyethene4 (pet) ) can have undesirable impacts on human and animal health due to the discharges of carcinogenic5 compounds that increase the risk of cancer, as well as the decomposition resulting in microplastics6 crawling up the food chain.7 a 2018 report by the department of marine and coastal resources, noted that at least 300 marine animals die on average from consuming fishing gear and plastic-based waste each year, and about 60% of these are whales and dolphins.8 as much as 54% of the 120 species of marine mammals listed as endangered species (red list) by the international union for conservation of nature (iucn) and known to have been entangled by plastic waste.9 the data above has described the danger of plastic waste pollution to the marine biota ecosystem and the quality of the marine environment. the problem of marine plastic litter has become a global concern, as well as in the southeast asian region.10 in 2015 research shows that 6 out of 11 southeast asian countries listed in the top 20 countries ranked by mass of mismanaged plastic waste. these countries are indonesia (second), philippines (third), vietnam (fourth), thailand (sixth), malaysia (eighth), myanmar (seventeenth), with total pollution reaching 1.4-3.54 million metric tonnes (mmt) per year. plastic waste originating from the six countries exceeds the amount of plastic waste produced by china in the first place with total plastic waste pollution reaching 1.32-1.53 mmt per year.11 there have been several concrete cases related to the problem of marine plastic waste in the southeast asian regional seas.12 one of an example taken from the finding of a mass of plastic waste disseminated over nearly 10 kilometres was seen floating off the coast of the gulf of thailand province of chumpon. it shows the complexity of marine plastic litter issue in the world’s ocean, including thailand, which ranks the sixth-worst sea pollutants in this world.13 according to the pollution control department, thailand annually produces around 2 million tons of plastic waste, and only 25% is recycled, the rest moves to incineration, and approximately 50,000 to 60,000 tons flows to the sea. another example spotted at tongkaina beach in manado, indonesia, through a study conducted in 2019 which showed that the most common types of marine pollution found 58.2% of 1433.38 gr/m2 total weight marine pollution contains plastic litters.14 these cases prompted the regional organisation of the association of 3 peter j. kershaw, marine plastic debris & microplastic (nairobi:unep, 2016), 2. 4 polyethylene is a plastic material that is widely used by consumer products as plastic bags. 5 carcinogen is any substance, radionuclide, or radiation that promotes carcinogenesis, the formation of cancer. this may be due to the ability to damage the genome or to the disruption of cellular metabolic processes. 6 microplastics are small plastic pieces less than five millimeters long which can be harmful to our ocean and aquatic life 7 peter. j. kershaw, op. cit., 3. 8 luisa gargani, “impact of marine litter”, frontiers in marine science 6, (2019): 1-8, 4, doi: 10.3389/fmars.2019.0020 9 special survival commission, iucn red categories and criteria (swiss: iucn, 2012). 10 u. rashid sumaila, “comparative valuation of fisheries in asian large marine ecosystems with emphasis on the east china sea and south china sea lmes”, deepsea research part ii 163, (2019): 96-101, 96, doi: 10.1016/j.dsr2.2018.12.008. 11 j. r. jambeck, r. geyer, & c. wiloex, “plastic waste inputs from land to ocean”, sciencemag 347, no. 6223 (2015): 768-771, 769, doi: 10.1126/science.1260879. 12 aurélie v. duhec, et al, “composition and potential origin of marine debris stranded in the western indian ocean on remote alphonse island, seychelles”, marine pollution bulletin 96, no. 1-2 (2015): 76-86, 76, doi: 10.1016/j.marpolbul.2015.05.042. 13 piyaporn wongruang, “special report: alarm raised as thailand drowns in plastic trash”, the nation thailand, 05 may 2018. 14 markus t. lasut, et al, “from coral triangle to trash trianglehow the hot spot of global marine biodiversity is threatened by plastic waste”, proceedings of the lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 71 southeast asian nations (asean) to take comprehensive steps to conquer marine plastic litter issue in its ocean.15 as stated in the bangkok declaration, the aim of establishing asean was to establish cooperation between countries in southeast asia.16 regional cooperation between southeast asia member states is the implementation of the mandate described on principles 7 and 24 of the 1972 stockholm declaration as the main instruments of international environmental law, article 194 paragraph (1) and article 196 of unclos 1982 as the main instruments of international law of the sea and unea-4/6 resolution on marine plastic litters and microplastic as a global recommendation on marine environmental protection.17 the regional cooperation efforts of asean member states are carried out through an institutional framework based on the asean blueprint 2025 as a commitment of asean countries to improve the quality of life of the asean people, especially in the aspect of improving the quality of the environment, includes prevention of marine waste, especially plastic pollution.18 regional cooperation in southeast asia will be further illustrated through the following chart: international conference on microplastic pollution in the mediterranean sea, springer water, (2018): 108, doi: 10.1007/978-3-319-71279-6_1. 15 g. beatriz, m. f. mandy, l. jolene, “marine plastic pollution in asia:all hands on deck!”, chinese journal of environmental law 3, no. 1 (2019): 19-46, 44, doi: 10.1163/24686042-12340034. 16 abdul muthalib tahar and s endang prasetyawati, “kajian harmonisasi hukum persaingan tiga negara anggota asean berdasarkan the asean regional guidelines on competition policy study of harmonization of competition laws of three asean member countries based on the asean regional guidelines on competition policy,” cepalo 2, no. 1 (2019): 1–20, 2, doi: 10.25041/cepalo.v2no1.1758. 17 nguyen van truong, chu beiping, “plastic marine debris: sources, impacts and management”, international journal of environmental studies (2019): 10-20, 10, doi: 10.1080/00207233.2019.1662211 18 https://asean.org/storage/2019/03/3.-joint-media-statement-samm-5-march-2019-thai-logo.pdf., accessed on march 5, 2019. https://asean.org/storage/2019/03/3.-joint-media-statement-samm-5-march-2019-thai-logo.pdf southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 72 chart 1.1 southeast asia regional cooperation on tackling marine plastic litter sources: lyons, youna, su, theresa and mei lin neo. a review of research on marine plastics in southeast asia: who does what?. singapore: national university of singapore, 2019, 41. asean working groups on coastal and marine environment (awgcme) is the asean technical working groups that straightly related to marine environment protection issues, including plastic litters pollution.19 moreover, asean has organised related activity centres, namely the asean conference on reducing marine debris in the asean region in thailand by the ministry of environment and natural resources. the conference was the result of the 20th asean working group meeting on the coastal, and marine environment. it aims to bring together relevant asean sectoral bodies and various stakeholders, including the government; international organisations, business and industry; academics and experts; civil society and youth, involved in various issues such as health and food safety; science, technology, and innovation and fisheries, including legal and regulatory frameworks to discuss asean’s further strategy in combating marine plastic litter more effectively, under the asean vision 2025 on governing biodiversity and natural resources for sustainable development. 20 the establishment of various working groups and the execution of regional conferences on the tackling of marine plastic litters problems shows that asean has given immense concern addressing the issue. it can be said that it is only about time asean will eventually be able to 19 julius cesar t, “marine environmental protection and cooperation: an asean-china framework?”, rsis commentary, no. 113 (2017): 1-4, 3. 20 asean, bangkok declaration on combating marine debris in asean region, (jakarta: asean sekretariat, 2019), 3. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 73 conquer marine plastic litter in its region once the mandates implemented adequately.21 however, asean does not yet have a binding regional action plan for its member states, which provoked the ineffectiveness of the implementation of the programmes.22 moreover, it is indeed a concern that the implementation process will be a challenge for asean countries, due to the principle of non-interference governing that all policies are under the government of each member states.23 therefore, this study aims to examine regional cooperation between southeast asia countries conquers the severe pollution of our oceans caused by marine plastic litters. the method used in this study is normative legal research with the statutory approach by reviewing the material content and the philosophical foundation of the law.24 the data in this study used secondary data sources and literature study techniques. b. discussion discussion and analysis will further explain and describe 2 (two) main issues, which are the development of southeast asia regional cooperation in tackling marine plastic litters, and asean cooperative mechanism in addressing the marine plastic litters problem through the asean institutional frameworks. 1. the development of southeast asia regional cooperation in tackling marine plastic litters plastics production increased rapidly from the 1950s, with global production reaching approximately 311 million tonnes in 2014. 25 if the current trend of a 5% production increase per year remains, an additional 33 billion tons of plastic will have accumulated up around the globe by 2050.26 today, plastics have replaced the application of traditional materials in various sectors, including construction, transportation, household goods and packaging.27 due to insufficient producer responsibility, lack of awareness over the consequences of littering, the short life cycle of many products and high consumption rates, the durability of plastic, inadequate sewage and waste management including poorly operated and illegal landfills are a series of factors prompting massive marine plastic pollution.28 however, existing various international legal instruments related to environmental protection do not yet contain specific stipulations related to tackling plastic litters issue.29 the matter of marine plastic litters began to be arranged into various legislative agendas after the 21 craig forest, “state cooperation in combating transboundary marine pollution in south east asia”, australian and new zealand maritime law 30, no. 1 (2016): 78-89. 22 sarva m. p., siti n. m., shinichi a, “exploration of microplastics from personal care and cosmetic products and its estimated emissions to marine environment: an evidence from malaysia”, marine pollution bulletin 136, (2018): 135-140, 136, doi: 10.1016/j.marpolbul.2018.09.012. 23 k. l. koh, a. r. nicholas, l. lye, asean environmental legal integration (cambridge: cambridge university press, 2016), 29. 24 tedy nopriandi, risky fany ardhiansyah,“ paradigm of death penalty (comparative study in indonesia, saudi arabia and china)”, lampung journal of international law (lajil) 2, no. 1 (2020): 47-56, 48. 25. l. ansje, “solution for global marine litter pollution”, current opinion in environmental sustainability, no. 28 (2017): 90-100, 91, doi: 10.1016/j.cosust.2017.08.009. 26 stefanie werner, “marine plastic littera massive waste problem”, journal for waste resources and residues 1, no. 1 (2018): 128-133, 128, doi: 10.26403/detritus/2018.21. 27 lebreton l. c, et al, “river plastic emissions to the world’s oceans”, nat. commun 8, no.15611 (2017): 1-8, 2, doi: 10.1038/ncomms15611. 28 peter dauvergne, “why is the global governance of plastic failing the oceans?”, global environmental changes 51, (2018): 22-31, 23, doi: /10.1016/j.gloenvcha.2018.05.002 29 ma. gregoria joane p.t, et al, “management frameworks for coastal and marine pollution in the european and southeast asia region”, ocean and management 135, (2017): 65-78, 67. doi: 10.1016/j.ocecoaman.2016.11.003 0964-5691/ http://issn.pdii.lipi.go.id/issn.cgi?daftar&1551850206&1&& southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 74 adoption of unea 1/6 resolution on marine plastic litters and microplastic in 2014 by the united nations environment program (unep), as the un body in the scope of the environment.30 to date, unep, through its legislative authority, the united nations environment assembly (unea) has issued a total of four resolutions. the latest resolution, namely, unea-4 / res. 4/6 on marine debris and microplastics in 2019, explicitly stipulates regional cooperation recommendations mentioned in paragraph 3 unea-4 which stated that all member states should “... strengthen coordination and cooperation by establishing, subject to the availability of resources and building on existing initiatives, a multi-stakeholder platform within the united nations environment program to take immediate action towards the longterm elimination, through a life-cycle approach, of discharges of litter and microplastics into the oceans at the national, regional and international levels...”. this paragraph then becomes a directive for countries to develop cooperation between states in combating marine plastic issues. the series of resolutions adopted by the unea became the basis for the implementation of many marine environmental preservation programs by the state, international organisations, non-governmental organisations and other parties as an effort to implement the mandate to increase cooperation and partnerships at the regional level on the protection of the marine environment from plastic waste pollution.31 unep has established a series of programmes in tackling marine plastic litters, which will be explained below: 2. southeast asia regional initiatives under united nations environment programmes (unep) in general, unep has two primary programs of global and regional cooperation in tackling marine plastic litters, namely the global program of action for the protection of the marine environment from land-based activities (gpa) and regional seas programs (rsp) as the most extensive regional program in the world. the rsp was established and authorised in 1974 by unep. the rsp aims to address the problem of marine degradation by involving adjacent countries in collaboration to support the realisation of international environmental and development targets.32 to date, the rsp has comprised 18 marine regions from 146 countries that have joined 18 regional seas conventions and action plans (rscap) or the regional sea convention and action plan and particular protocols addressing the matter of the marine environment preservation, which explained in the following table. 30 c. giulia, and k. konstantin, “advancing the international regulation of plastic pollution beyond the united nations environment assembly resolutions on marine litter and microplastics”, review of european,comparative and international environmental law 27, no. 3 (2018): 234-244, 235, doi: 10.1111/reel/12258. 31 joanna vince, britta denise h, “plastic pollution challenges in marine and coastal environments: from local to global governance”, the journal of the society for ecological restoration 25, no. 1 (2016): 123-128, 124, doi: 10.1111/rec.12388 32 porter hoagland, d. jin, unep regional seas report and studies no. 181 (netherland: unep, 2006), 10. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 75 table 1.1 sea area division administered by the rsp based on the table, it showed that the southeast asian ocean region had not been included in the list of sea area division administered by the rsp. moreover, the southeast asian region does not yet have a specific regional action plan. although, several countries in the southeast asia region are participating countries in the east asian sea action plan which was established in 1981 as a form of regional cooperation between east and southeast asian countries regarding the development and protection of the marine environment.33 to date, the countries involved in the mentioned action plan are indonesia, cambodia, malaysia, the philippines, thailand, singapore and vietnam as representatives from southeast asia and china and korea as representatives from east asia. 34 the establishment of the east asia seas action plan is the starting point for the development of cooperation between countries in southeast asia in addressing the degradation of the marine environment, including pollution by plastic waste. 3. asean cooperative mechanism in addressing the marine plastic litters problem through the asean institutional frameworks the united nations convention on the law of the sea (unclos) chapter xii (articles 192-237) stipulates the protection and preservation of the marine environment. countries are required to cooperate and take all necessary steps to prevent, reduce and control pollution of the marine environment from all sources.35 moreover, article 197 explicitly stated that “states shall cooperate on a global basis and regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended programs for the protection and preservation of the marine environment, taking into account characteristic regional features”. thus, this article becomes the legal basis for cooperation establishment on the protection of the marine environment at the regional level. realising the potential degradation regarding marine environment especially plastic pollution, southeast member states are searching for effective strategies to tackle the issues.36 in that matter, marine plastic litter issues in the asean regional sea began to be the main topic 33 hugh kikman, “the east asian seas unep regional seas programme”, international environment agreements springer 6, no. 3 (2006): 305-316, 306, doi: 10.1007/s|074-006-9011-5. 34 https://www.unenvironment.org/cobsea/who-we-are, accessed on march 4, 2020. 35 article 194 (1) united nations conference on the law of the sea (unclos) 1982. 36 khairunnisa ahmad k, et al, “an assessment of marine protected areas as a marine management strategy in southeast asia: a literature review”, ocean and management 145, no. 1 (2017): 72-81, 73, doi: 10.1016/j.ocecoaman.2017.05.008. https://www.unenvironment.org/cobsea/who-we-are southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 76 of the regional forum since the east asia summit (eas) conference on marine debris on 6-7 september 2017 in bali. 37 the conference discussed strategies and solution findings on the marine plastic problem of the participating countries territorial waters by addressing the challenges in managing plastic waste and designing innovative solutions, as well as strengthening cooperation between parties from the local, national and regional levels. subsequently, further conferences were held, namely the asean conference on marine debris. the asean conference on marine debris was organised by the department of marine and coastal resources and the ministry of natural resources and environment (monre) thailand in coordination with the asean secretariat and the international union for conservation of nature (iucn) on 22-23 november 2017 in phuket, thailand.38 the result of the conference then became a recommendation for the asean member states to began to draft the asean regional strategic plan on marine plastic litters problem through the asean institutional framework (see chart 1.1), which will be explained below. a. asean community at the 27th asean summit in 2015, the leaders of the 10 asean countries collectively signed the 2015 kuala lumpur declaration on the establishment of the asean community, marking a new historical stage in the development of asean regional integration. asean community contains three pillars, namely the asean political-security community (apsc), the asean economic community (aec) and the asean socio-cultural community (ascc). the meeting also adopted a set of concept documents, including vision of the asean community in 2025, asean political-security community blueprint in 2025, asean economic community blueprint in 2025, asean social and cultural community blueprint in 2025.39 asean community is a multilateral agreement between asean member states that aims to strengthen cooperation in the political, economic, socio-cultural, security sectors and improve environmental quality.40 ascc is one of the three pillars of the asean community that related to environmental protection and preservation. the implementation of the objectives is written under the ascc blueprint 2025 as a commitment of asean member states which was substantially carried out from 2009 to 2015 and confirmed beneficial in developing and strengthening the coherence of frameworks to advance human resource development, justice and social rights, protection and social prosperity, and environmental sustainability.41 the implementation strategy of ascc blueprint 2025 related to the protection and preservation of the marine environment, then embedded into the 2016-2025 asean strategic plan on the environment (aspen).42 seven priority points have been identified under the strategic plan, namely: 1) nature conservation and biodiversity 2) coastal and marine environment 3) water resources management 4) environmentally sustainable cities 5) climate change 6) chemicals and waste 37 nina von toulon, ”6 & 7 september east asian summit conference on marine plastic debris”, indonesia waste organization, 2017. 38 https://environment.asean.org/media-release-asean-conference-on-reducing-marine-debris-in-asean-region/, accessed on march 4, 2020. 39 zhiyuan ren, “thailand’s strategic choice to participate in regional cooperation of asean community”, advances in social science, education and humanities research 416, (2020): 1560-1570, 1565, doi: 10.2991/assehr.k.200316.331. 40 asean, asean: a community oppurtunities (jakarta: asean secretariat, 2015), 2. 41 asean, asean socio-cultural community blueprint 2025 (jakarta: asean sekretariat, 2015), 2. 42 asean, asean strategic plan on environment 2016-2025 draft (jakarta: asean sekretariat, 2017), 8. https://dx.doi.org/10.2991/assehr.k.200316.331 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 77 7) environmental education (and sustainable consumption and production) strategic measurement of marine plastic litter issues implicitly included in second priority points of the asean strategic plan.43 furthermore, the implementation of a strategic plan on tackling marine plastic litter issue, administered through the establishment of an asean institutional framework, namely the asean ministerial meeting on environment (amme) and the asean senior official on the environment (asoen) supported by six working groups as an effort to implement ascc blueprint 2025, which will be described below:44 b. asean ministerial meeting on the environment (amme) the environmental management cooperation in the asean region formulated for the first time in the asean environmental program in 1977.45 in 1981, the following the asean environment program was held and organised by the asean ministerial meeting on environment (amme) as one of the institutional body for asean cooperation in environmental sectors. amme administered by ministers from asean member states responsible for environmental management. amme meetings held every two years.46 the effort taken by amme regarding marine plastic litter in asean regional sea has significantly developed since the special asean ministerial meeting on marine debris (samm-md) on march 4-5, 2019 in bangkok, thailand was held. during the samm-md, each asean member states delivered its country statement highlighting its actions to reduce marine debris includes pollution from plastic. for instance, the philippines reported that the manila bay rehabilitation program would showcase its commitment to address marine debris. in general, the meeting aims to discuss possible steps and practical solutions related to marine debris, including plastic litter issues by the asean member states, also strengthen regional and international cooperation on waste management.47 the final results of the meeting are as follows: 1) bangkok declaration on marine debris on june 22, 2019, asean enacted the bangkok declaration on combating marine debris, held at the 34th asean summit in bangkok.48 in this declaration, representatives of participating countries expressed their collective urge to overcome the global threat of pollution in the asean regional marine environment, including plastic waste. the statement emphasised the commitment of member states to find solutions through cooperation and coordination between sectors and related parties, as well as the development of innovative solutions.asean regional effort to deal with the marine plastic litter stipulated in the bangkok declaration, which emphasises several priority points, including:49 a) strengthening actions at the national level and among asean member countries and related parties to prevent and reduce marine waste, including plastics; b) promote intersectoral coordination; c) improve coordination and cooperation of various stakeholders; d) promote private sector involvement and investment; 43 lyons, youna, su, theresa and mei lin neo, a review of research on marine plastics in southeast asia: who does what? (singapore: national university of singapore, 2019), 35. 44 https://asean.org/asean-socio-cultural/asean-ministerial-meeting-on-environment-amme/, accessed on march 4, 2020. 45 g. beatriz., feng. m., lin. j. op. cit., 16. 46 http://intl.denr.gov.ph/index.php/asean-environmental-groups/asean-high-level-meetings/article/4, accessed on march 4, 2020. 47 https://www.asean2019.go.th/en/infographic/why-should-we-care-about-marine-debris/, accessed on march 4, 2020. 48 julios cesar t. op. cit., 8. 49 asean, “bangkok declaration on combating marine debris in asean region”, 2019. https://asean.org/asean-socio-cultural/asean-ministerial-meeting-on-environment-amme/ http://intl.denr.gov.ph/index.php/asean-environmental-groups/asean-high-level-meetings/article/4 https://www.asean2019.go.th/en/infographic/why-should-we-care-about-marine-debris/ southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 78 e) strengthen research capacity and application of scientific knowledge f) accelerate advocacy and action to increase public awareness and participation and improve education about the protection of the marine environment. 2) asean framework of action on marine debris the framework of action on marine debris is the discussions result from representatives responsible in the field of natural, environmental and marine resources from all asean member countries at the special asean ministerial meeting on marine debris on march 5 2019, in bangkok, thailand.50 this framework aims to strengthen collaborative action among asean member countries and related parties to prevent and deal with marine plastic litter significantly. this framework consists of four priority areas explained by table below: table 1.2 asean framework of action on marine debris no framework supporting actions 1 policy support and planning 1. promote regional policy dialogue on prevention and reduction of marine debris from landand sea-based activities by highlighting the issue, sharing information and knowledge, and strengthening regional coordination. 2. the mainstream multi-sectoral policy is measures to address marine debris in national and asean’s development agenda and priorities. 3. encourage asean member states to implement relevant international laws and agreements related to waste managementsuch as marpol annex v ship-generated waste, basel convention, and un environment assembly resolutions 3/7 on marine litter and microplastics. 4. develop a regional action plan on combating marine debris in the asean region by applying integrated land-to sea policy approaches. 2 research, innovation and capacity building 1. compile regional baseline on status and impacts of marine debris in the asean region. 2. strengthen regional, national and local capacities to develop and implement national action plans/initiatives. 3. enhance scientific knowledge, transfer marine technology and promote an innovative solution to combat marine debris. 4. promote integration and application of scientific knowledge to enhance science-based decisions and policies on marine debris prevention and management. 3 public awareness, education and outreach 1. promote public awareness on the status and impacts of marine debris and microplastics. 2. accelerate advocacy strategy/ programme to promote behaviour change to combat marine debris, and to incorporate marine debris issue into asean’s culture of prevention initiative. 3. promote platforms for knowledge sharing, innovative solutions and best practices to combat marine debris 50 https://asean.org/asean-framework-action-marine-debris/, accessed on march 4, 2020. https://asean.org/asean-framework-action-marine-debris/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 79 4 private sector engagement 1. promote collaborative actions with the private sector and industry associations to implement measures to address marine debris issues. 2. encourage private sector investment in and contribution to combating marine debris. sources: asean framework of action on marine debris. accessed on https://asean.org/asean-framework-action-marine-debris/ in general, these instruments focus on strengthening local laws and cooperation to combat marine debris, including plastic litters issue. it adopts a ‘land-to sea approach’. it recognises the importance of multi-sectoral coordination, especially the engagement of the private sector and investment in preventing the problem of marine debris.51 these instruments are a milestone for the asean member states in dealing with pollution problems at sea. however, to ensure this initiative runs effectively, all parties must work together with their respective roles to take all possible steps to protect and preserve the marine environment. c. asean senior official on the environment (asoen) in 1989, the asean senior official on the environment (asoen) established to support amme. asoen was previously known as the asean expert group on the environment (aege), which operates under the asean committee for science and technology.52 asoen has additional bodies or working groups that have specific mandates related to environmental preservation and protection. asoen and its working groups hold annual meetings to review the progress of the implementation of the ascc blueprint 2025 and the asean environmental strategic plan (aspen). the asean working group on coastal and marine environment (awgcme) is a working group under asoen that is directly related to efforts to deal with marine pollution issue, including plastic litters. concerning the southeast asia regional cooperation on marine plastic litter issues, awgcme has been commissioned explicitly by asoen to act as the primary coordinating working group in the activity of handling marine waste problems in the asean region with the support of other relevant working groups, such as the asean working group on chemicals and waste (awgcw) and the asean working group on sustainable cities (awgesc). some concrete activities carried out by awgcme in the effort of dealing with marine pollution, including plastic, are:53 1) the asean conference on reducing marine debris in the asean region, organised by the thai ministry of natural resources and environment in coordination with the asean secretariat in november 2017 in phuket, thailand. 2) asean high-level dialogue on oceans and blue economy 2018: enhancing regional cooperation for sustainable fisheries and marine pollution in southeast asia. 3) marine waste management coordination meeting in asean, held in january 2019, in phuket, thailand. 4) asean-norway cooperation project on local capacity building to reduce plastic pollution in the asean region (asean) held on december 9, 2019, in jakarta, indonesia. 5) strengthening the capacity for reducing marine debris in the asean region through the formulation of the national action plan for asean member countries and the integrated land-to-sea policy approach held in october 2019 in bangkok, thailand. 51 harsh mahaseth, “dealing with marine debris the asean waya critical analysis of asean framwork of action on marine debris and its impact”, vollkerechtsblog, (2020). 52 http://intl.denr.gov.ph/index.php/asean-menu/asean-groups/asean-high-level-meetings/article/3, accessed on march 4, 2020. 53 ibid. http://intl.denr.gov.ph/index.php/asean-menu/asean-groups/asean-high-level-meetings/article/3 southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 80 6) asean-eu project on circular economy which was held on 11-12 june 2019 in kuala lumpur, malaysia to present eu policies and legislation related to plastics, plastic waste and promotion of the use and regulation of plastic waste. cooperation between southeast asian countries under the asean institutional framework has successfully adopted several instruments as evidence of the commitment of member countries in protecting their marine environment.54 the series of efforts that have been carried out by asean in dealing with marine pollution issue is proof that asean is aware of the urgency and importance of their role as the primary organisation in southeast asia. however, the instrument still possesses several shortcomings and challenges. based on the data above, it showed that neither the framework nor the declaration ban explicitly single-use plastics or imports of foreign waste, which plastic is the most significant pollutant at sea, worsen by a trend of plastic waste imports amongst southeast asian countries. according to data from the international trade center, asean’s plastic waste imports surged last year to more than 2.2 million tonnes or 27 per cent of the total import worldwide. it was up from 11 per cent of the worldwide total in 2017, and just over 5 per cent in 2016.55 moreover, another challenge originates from a strict asean principle of non-interference that leaves the necessary decision-making process in the hands of member countries. this approach was helpful in the formative years (the 1960s-70s), allowing states to deal with their domestic problems without intervention from other members states. however, the organisation needs a change to a rules-based regime and more reliable regional integration to be effective. this principle will potentially be causing lacks of enforcement mechanisms and provoked states to rely on negotiation and consultation to resolve disputes, without taking recourse to any legal consequences for non-compliance or breach of the agreement. therefore, it is indeed a concern that the instrument adopted by asean will be implemented ineffectively.56 however, this concern is not impossible to overcome. the author gives several suggestions for applicable initiatives and strategic steps based on the data that has been described, such as : 1) strengthening national policies for each member states; 2) establishing intersectoral cooperation; 3) increasing public awareness; 4) maintaining collaboratives partnership with existing potential partners; such as international organisations, non-governmental organisations, local government, civil society, media, academia and scientists; 5) enhancing the effectiveness of strategies with various stakeholders and the public to generate support, garner awareness, and promote the active participation of the whole community regarding the protection and preservation of the environment from the plastic waste pollution. c. conclusion southeast asia regional cooperation on marine plastic litter is pioneered by the regional organisation of the association of south-east asia nations (asean) based on the asean socio-cultural community (ascc) blueprint 2025. the implementation of the asean blueprint 2025 related to the protection and preservation of the marine environment is carried out through the asean institutional framework, namely the asean ministerial meeting on environment (amme) and asean seniors official meeting on the environment (asoen). the two institutional frameworks have produced two instruments, namely the bangkok 54 nguyen thi xuan son, “policy on marine plastic waste in asean and vietnam”, environmental claims journal, (2020): 1-13, 2, doi: 10.1080/10406026.2020.1775347 55 neo chai cin, “encouraging start, but asean has to go beyond its pledge to tackle marine waste”, eco-business, june 2019. 56 asean, “asean strategic plan on environment 2016-2025 draft”, op.cit., 14. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 2, 2020 e-issn: 2723-2603 81 declaration on marine debris and the asean framework of action on marine debris and several related programs organised by the asean working group on coastal and marine environments (awgcme). unfortunately, asean does not yet have a regional action plan explicitly addressing the problem of plastic waste at sea, so that the series of programs that have been implemented are expected to be a reference in the formation of 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https://www.unenvironment.org/cobsea/who-we-are, accessed on march 4, 2020. http://intl.denr.gov.ph/index.php/asean-environmental-groups/asean-high-level-meetings/article/4 http://intl.denr.gov.ph/index.php/asean-environmental-groups/asean-high-level-meetings/article/4 https://asean.org/asean-framework-action-marine-debris/ https://asean.org/asean-socio-cultural/asean-ministerial-meeting-on-environment-amme/ https://asean.org/storage/2019/03/3.-joint-media-statement-samm-5-march-2019-thai-logo.pdf https://asean.org/storage/2019/03/3.-joint-media-statement-samm-5-march-2019-thai-logo.pdf https://environment.asean.org/media-release-asean-conference-on-reducing-marine-debris-in-asean-region/ https://environment.asean.org/media-release-asean-conference-on-reducing-marine-debris-in-asean-region/ https://www.unenvironment.org/cobsea/who-we-are southeast asia regional cooperation on tackling marine plastic litter febryani sabatira 84 41 food safety of genetically modified organism according to international law and its implementation in indonesia risa mahdewi1, desia rakhma banjarani2 1kejaksaan negeri tanggamus, indonesia, email: risamahdewi@gmail.com 2faculty of law, universitas lampung, indonesia, email: desiarahma7@gmail.com submitted: february 4, 2020; reviewed: february 19, 2020; accepted: february 29, 2020 article info abstract keywords: food, safety, biosafety, gmo doi: 10.25041/lajil.v2i1.2031 modern biotechnology products have provided considerable benefits for improving human life and wellbeing, both in the agriculture, food, industry and human health sectors, as well as in the environmental field. but there are concerns that modern biotechnology products, in addition to providing benefits, also have risks that have adverse impacts on the conservation and sustainable use of biodiversity and human health. therefore, steps need to be taken, both legally, administratively, and technology to ensure the level of biological safety. this study aims to explain and analyze the safety of genetically modified organism or gmo according to international law and their implementation in indonesia. the problem approach used in this research is normative law (library research). the data used are secondary data obtained from international, national legal regulations and literature data related to material that supports discussion of the problem. analysis of the data used is descriptive qualitative. the results of research on food safety of genetically modified organism or gmo according to international law, are regulations on food safety of genetically engineered products regulated in the convention on biological diversity and the cartagena protocol on biosafety. the laws and regulations governing gmo food in indonesia are good enough because they have carried out the mandate and did not deviate from the biodiversity convention and cartagena protocol by passing legislation regulations from the legal level to the decision level of the head of bpom. it’s just that for rules regarding gmo food that is sold in retail, or that is not in the form of packaging, there is still no technical rules that can answer the problems in the field. a. introduction volume 2 issue 1, 2020: pp. 41-56. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:risamahdewi@gmail.com mailto:desiarahma7@gmail.com https://doi.org/10.25041/lajil.v2i1.2031 food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 42 one of the milestones in the progress of science and technology today besides information technology is the existence of biotechnology.1 this technology has an impact on various sectors of human life, ranging from food needs, medicine, health, weapons, industry, and so on.2 the development of technology, especially genetic modified technology,3 is contributing various benefits to the agricultural sector from food in the world in the past two decades. through genetic modified plants and food have increased the quality and supply of food to meet the world’s growing population needs.4 genetic modified5 is covering various traditional processes such as brewing, baking, winemaking, cheese making, the production of various oriental foods such as soy sauce, tempeh and waste treatment which in the process have developed the use of microorganisms since many years ago.6 the process of modernization is very broad, with almost no scope and problems, ranging from social, economic, cultural, political aspects, and so on.7 modernization also has an impact on biotechnology products. modern biotechnology products have provided considerable benefits for improving the lives and well-being of people, both in the agriculture, food, industry, human health sectors, as well as in the environmental field. but there are concerns about modern biotechnology products. besides providing benefits, they also have risks that have adverse impacts on the conservation and sustainable use of biodiversity and human health.8 therefore, the steps need to be taken, both legally, administratively, and technology to ensure the level of biological safety. for this reason, the united nations environment program (unep) governing council in 1987 decided to establish an ad hoc working group consisting of biodiversity experts.9 in may 1991, the ad hoc working group became the intergovernmental negotiating committee (inc) for the convention on biological diversity. inc held a total of seven negotiation sessions from 1991 to 1992. the meeting turned into a conference to adopt the final text of the convention on biological diversity on may 22, 1992.10 1 biotechnology is closely related to biodiversity, this is because biodiversity is a genetic resource of biotechnology, which in its development, the tendency of commercialization, large-scale ohmg production, weak supervision, lack of information and other things become obstacles in the use of biotechnology. bernhard a. koch, economic loss caused by genetically modified organisms liability and redress for adventitious presence of gmos in non-gm crops, (germany: european centre of tort and insurance law: 2007), 5. 2 jeremy rifkin, the biotech century: how genetic commerce will change the world (london: phoenix, 1998), 2. 3 genetic modified is the ability to move genes among sexually incompatible organisms, creating new organisms from desirable characteristics. gerald c. nelson, genetically modified organisms in agriculture economics and politics (usa: academic press, 2001), 7 4 john e. smith. biotechnology (jakarta: egc, 1995), 2-3. as write in indra p pasaribu, “tinjauan hukum internasional terhadap pertanggungjawaban dan upaya pemulihan (liability and redress) atas kerugian yang timbul dari perpindahan lintas batas organisme hasil modifikasi genetik”, a thesis of department of international law, faculty of law, university of north sumatra, medan, (2011), 16. 5 genetic modified itself is a process used to create gm seeds. food plants, and the food they produce, are technologies used to isolate genes from one organism, manipulate them in the laboratory, and inject them into other organisms. mark a. pollack, when cooperation fails the international law and politics of genetically modified foods (new york: oxford university press, 2009), 9. 6 knut j. heller, genetically engineered food methods and detection (germany: bibliographic information published: 2003), 62. 7 ricco andreas, bambang suryadi, “nilai islam dan pancasila: pengaruh globalisasi dan modernisasi dalam pembangunan sistem hukum di indonesia”, nizham 07, no. 1 (2019): 80-97, 82. 8 http://lawwatchforum.com/wp/perlindungn-hukum-terhadap-dampak-perkembangan-produk-bioteknologi/, accessed on june 2, 2020. 9 ibid. 10 terje traavik and lim li ching, biosafety first-holistic approaches to risk and uncertainty in genetic engineering and genetically modified organism (third world network and genok, 2009), 389. http://lawwatchforum.com/wp/perlindungn-hukum-terhadap-dampak-perkembangan-produk-bioteknologi/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 43 the convention on biological diversity was born as a manifestation of humanity’s concern over the diminishing value of biodiversity caused by the rapid rate of biodiversity damage and the need for the world community to integrate all safeguards for the survival of nature and humankind furthermore.11 through this convention, the world community recognizes that biodiversity is a common concern of humankind, and is an inseparable part of the development process.12 as a follow-up the safety of genetically modified organisms (gmo) products and as implement the provisions of the convention on biological diversity, the international community has agreed on a protocol for kkh which came to be known as the cartagena protocol on biosafety to the convention on biological diversity in 2000.13 the cartagena protocol was created to ensure an adequate level of protection in the area of transfer, treatment and safe use of living modified organisms derived from modern biotechnology, and specifically focuses on transboundary movements. this causes regulations to be held regarding impacts on the environment and human health, including marketing and releasing products to the environment.14 indonesia, which is one of the mega diversity countries, is located in the biodiversity distribution path of the continents of asia (java, sumatra and kalimantan) and australia (papua), and in the wallace line transition zone (sulawesi, maluku and nusa tenggara).15 not only is it known as a megadiverse country, but indonesia is also known as one of the countries with a high level of biodiversity loss in the world.16 be aware of the richness of biodiversity owned,17 indonesia ratified the convention on biological diversity by passing law number 5 of 1994 concerning ratification of the united nations convention on biological diversity. as well as ratifying the cartagena protocol is by law number 21 of 2004 concerning ratification cartagena protocol on biosafety to the convention on biological diversity.18 based on the above background, the issue to be discussed in this research is how to regulate food safety of genetically modified organism according to international law and their implementation in indonesia. the research method used is a normative legal research method, which means only legal research norms that have relevance with gmo and biosafety.19 the 11 http://biogen.litbang.pertanian.go.id/index.php/2008/06/konvensi-keanekaragaman-hayati/, accessed on june 2, 2020. 12 http://www.industry.gov.au/resource/documents/lpsdp/lpsdp-biodiversityindo.pdf, accessed on june 1, 2020. 13 ruth mackenzie, an explanatory guide to the cartagena protocol on biosafety (switzerland: iucn environmental law centre, 2003), 17. 14 badan pengawas obat dan makanan, pangan produk rekayasa genetik, http://www.pom.go.id/mobile/index.php/view/berita/162/pangan-produk-rekayasa-genetik.html, accessed on june 1, 2020. 15 indonesia biosafety clearing house, protokol cartagena. http://indonesiabch.or.id/protokol-cartagena/, accessed on june 1, 2020. 16 http://www.pelatihanlingkungan.com/wp-content/uploads/2015/05/sambutan-menteri-hari-kehati-2015.pdf, accessed on june 1, 2020. 17 biodiversity is all life on earth which includes plants, animals, fungi and microorganisms, as well as the various genetic material they contain and the diversity of ecological systems in which they live, including the abundance and genetic diversity of organisms originating from all habitats, whether on land, sea or other water systems. social economic environmental, praktek unggulan program pembangunan berkelanjutan untuk industri pertambangan, (australia: global village translations, 2007), 4. 18 http://www.menlh.go.id/pengesahan-cartagena-protocol-on-biosafety-to-the-convention-on-biologicaldiversity/, accessed on june 1, 2020. 19 ahmad syarifudin, “implikasi adanya upaya hukum terhadap putusan bawaslu tentang pelanggaran administratif pemilu problematic of settlement of election administrative of violation’s,” cepalo 4, no. 1 (2020): 1-12, 4, doi: 10.25041/cepalo.v4no1.1897. http://biogen.litbang.pertanian.go.id/index.php/2008/06/konvensi-keanekaragaman-hayati/ http://www.industry.gov.au/resource/documents/lpsdp/lpsdp-biodiversityindo.pdf http://www.pom.go.id/mobile/index.php/view/berita/162/pangan-produk-rekayasa-genetika.html http://indonesiabch.or.id/protokol-cartagena/ http://www.pelatihanlingkungan.com/wp-content/uploads/2015/05/sambutan-menteri-hari-kehati-2015.pdf http://www.menlh.go.id/pengesahan-cartagena-protocol-on-biosafety-to-the-convention-on-biological-diversity/ http://www.menlh.go.id/pengesahan-cartagena-protocol-on-biosafety-to-the-convention-on-biological-diversity/ food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 44 data obtained are secondary data from literary sources such as literature, articles and internet sites. b. discussion 1. food safety of genetically modified organism according to international law a. convention on biological diversity convention on biodiversity20 as stipulated in its provisions is the conservation of biodiversity, the sustainable use of its components and the sharing of benefits resulting from the efficient and equitable utilization of genetic resources, including through adequate access to genetic resources and with the appropriate transfer of technology, and by taking into account all rights to those resources and technology, as well as with adequate funding. biodiversity conservation itself is defined as the management of living natural resources, the use of which is carried out wisely to ensure the sustainability of its supply while maintaining and improving the quality of diversity and its value.21 the use of biodiversity must not damage the environment, interfere with the sustainability of biodiversity, and endanger human health. this means that special methods are needed for security in the implementation of the use of biological diversity, both traditional and technological uses (one of which is biotechnology / genetic modification). biological safety is essential to apply, this is because biodiversity covers all aspects of life on earth, so that security and sustainability of biodiversity must be maintained so as not to damage the environment, disrupt the sustainability of biodiversity and endanger human health. the use of biodiversity that is not concerned with security aspects for human health is a scary thing for consumers, especially for the use of biodiversity by technological processes, namely by biotechnology, or what we call genetic engineering. using genetic engineering technology will change some of the genes in the organism, which will be consumed by humans so that it can endanger human health. therefore the discussion on human food (food) is also included in the security of the use of biodiversity (biodiversity) which must be regulated and carried out using a precautionary approach. in order to achieve this, the parties to this convention are required to enact legislative, administrative and policy measures in accordance with the aim that the parties, especially developing countries, which provide genetic resources are given access to the transfer of technology used to utilize these resources.22 biological safety23 covers food safety, feed security, and environmental security. biosafety is regulated for the first time in the cartagena protocol on biosafety, whereby the protocol is made based on the mandate of the convention on biodiversity which says that: “the parties must consider the need for protocols and models that determine the appropriate procedures including specifically informed consent, in the area of transfer, safe handling and 20 the convention was adopted as an international agreement in 1992 at the earth summit forum in rio de jeneiro, brazil. at present it has been signed by 168 countries and ratified by 157 countries, out of 198 countries that are members. the united states is the only major country that has not yet ratified it. jurnal bumi, konvensi keanekaragaman hayati. https://jurnalbumi.com/konvensi-keanekaragaman-hayati/, accessed on february 1, 2020. 21 article 1 of law number 5 of 1990 concerning conservation of living natural resources and their ecosystems. 22 article 16 paragraph (3) convention on biological diversity. 23 biosafety is a discipline in the handling and containment system of infectious microorganisms and hazardous biological substances. see also online news, directorate of research and innovation, bogor agricultural university, 2014, biosafety and biosecurity training for laboratory assistants. http://dri.ipb.ac.id/pelatihanbiosafety-dan-biosecurity-bagi-laboran/, accessed on june 1, 2020. https://jurnalbumi.com/konvensi-keanekaragaman-hayati/ http://dri.ipb.ac.id/pelatihan-biosafety-dan-biosecurity-bagi-laboran/ http://dri.ipb.ac.id/pelatihan-biosafety-dan-biosecurity-bagi-laboran/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 45 use of modified biotechnology organisms, which may have adverse effects on the conservation and sustainable use. biodiversity”.24 the biosafety convention or kkh governs the provisions regarding the security of the application of modern biotechnology, namely in clauses of article 8 letter (g), article 16, article 19 paragraph (3) and paragraph (4). it mandates the establishment of a protocol to regulate cross-border movement, handling and utilization of organisms results of genetic modification (ohmg) as a product of modern biotechnology. based on the mandate of these articles, the kkh parties began to negotiate the protocol on biosafety since 1995. it was only adopted in 2000 at the fifth session of the kkh conference of the parties in nairobi.25 b. cartagena ptotocol on biosafety cartagena protocol 26 is a protocol on the convention on biological diversity, where the convention on biological diversity (kkh) reveals in article 16 (access and transfer of technology) that access and transfer of modern biotechnology is an important element for achieving the objectives of the kkh. in the first two paragraphs of article 19 (handling biotechnology and the distribution of benefits) that parties must increase and develop priority access to the results and benefits arising from biotechnology.27 1) advance informed agreements prior notification is a procedure that must be applied by parties carrying out cross-border ohmg transfers deliberately introduced into the environment by the importer at the time of the first shipment to ensure that the recipient country has the opportunity and capacity to assess gmo risks.28 2) procedure for direct use of gmo this procedure applies to gmo which will be used directly as food, feed, or processed materials, provided that the decision-maker (the importer) is required to provide information at least as stated in attachment ii to the biosafety clearing-house in within 15 days of the decision being made, by national regulations consistent with the protocol’s objectives.29 3) risk assessment risk assessment is the application of the precautionary principle undertaken to make decisions on the inclusion of gmo, which will be introduced to the environment. the risk assessment must be based on the completeness of the minimum information in the notification as contained in appendix i and other scientific evidence to identify and evaluate the possible impacts of gmo on the conservation and sustainable use of biodiversity as well as risks to human health.30 4) risk management 24 article 19 paragraph (3) of the convention on biological diversity. 25 http://indonesiabch.or.id/protokol-cartagena/, accessed on june 1, 2020. 26 the cartagena protocol is intended to create uniform international procedures for regulating the safe movement of modified organisms. at the protocol center there is a further information agreement. procedures that will apply prior to intentional transboundary movement of transgenic organisms for deliberate introduction into the importer's environment. han somsen, the regulatory challenge of biotechnology human genetics, food and patents (uk: edward elgar publishing limited, 2007), 105. 27 http://www.prri.net/id/cartagena-protocol-biosafety/, accessed on june 1, 2020. 28 article 7 of the cartagena protocol on biosafety. 29 article 11 of the cartagena protocol on biosafety. 30 article 15 of the cartagena protocol on biosafety. http://indonesiabch.or.id/protokol-cartagena/ http://www.prri.net/id/cartagena-protocol-biosafety/ food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 46 risk management is a follow-up to the implementation of a risk assessment that includes the establishment of appropriate mechanisms, steps and strategies for managing, managing and controlling the risks identified in the risk assessment. the obligation arising from the application of risk management to these parties is to establish and implement a regulatory system with sufficient capacity to manage and control these risks.31 5) accidental transboundary movements and emergency measures accidental cross-border movements are gmo movements that occur outside the agreement of the importing and exporting parties. states parties must take steps through the notification to the biosafety clearing-house if a possible accident occurs and notify the contact points that can be contacted. in order to minimize significant adverse effects on the conservation and sustainable use of biodiversity, taking into account also risks to human health, each party in whose jurisdiction releases genetically modified organisms must immediately consult with a disadvantaged or potentially disadvantaged country so that they can decide on an appropriate response and take the necessary initial steps of action, including emergency measures.32 6) handling, transportation, packaging and utilization handling, transporting, packaging, and utilizing gmo intended for limited use clearly shows their identity as gmo and specifies any requirements for safe handling, storage, transportation and use, contact for further information, including names and the addresses of individuals and institutions to which the modified organism is transmitted. regulation of gmo handling, transport, packaging and utilization is part of efforts to ensure the safety of gmo development in accordance with the requirements of relevant international standards.33 7) biosafety clearing house the biosafety clearing-house is a body formed by the parties under article 20 of the cartagena protocol to facilitate the exchange of information in the scientific, technical, environmental and regulatory aspects of gmo in implementing the protocol. 8) capacity development the capacity building aims to develop and strengthen human resources and institutional capacity of developing countries in implementing the cartagena protocol. article 22 of the cartagena protocol regulates capacity development which requires cooperation taking into account the needs, conditions and capabilities of developing countries and countries undergoing economic transition. cooperation assistance can be in the form of scientific and technical training, transfer of technology and skills, and financial assistance. this capacity building is expected to help developing countries with a lack of human resources who are experts in the field of biotechnology. as well as funds in training and research in biotechnology, so that the development, application and use of biotechnology on biodiversity do not damage the environment, disrupt the sustainability of biodiversity and endanger health human. especially on food and feed of genetically modified products will be consumed by living things. 9) obligations of the parties to the community communities as part of the food chain that will consume genetically engineered food products, or instead become producers of genetically engineered food products, are required to know how to use gmo properly, as well as the safe transfer, handling and use of gmo. 31 article 16 of the cartagena protocol on biosafety. 32 article 17 of the cartagena protocol on biosafety. 33 article 18 of the cartagena protocol on biosafety. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 47 therefore, the parties in this protocol must provide information, training, and provide consultation to the community in their respective regions.34 the cartagena protocol only provides basic guidelines in the process of moving gmos across countries without providing detailed regulations regarding ownership rights, permits for use and commercialization, monitoring, field testing, or compensation/responsibility in the event of negative impacts. detailed regulations governing all these procedures are left to the regulations of each country which must be based on the contents of the cartagena protocol, this is in accordance with the mandate of article 2 of the cartagena protocol which states that each party is obliged to take legal, administrative and other actions that are necessary and appropriate to carry out its obligations under this protocol. the regulation of food safety of genetically engineered products according to international law regulated in the convention on biological diversity and the cartagena protocol. where the two rules only provide general rules on how the use of biodiversity and biodiversity which includes food security, but for implementing rules, sovereignty is given to the parties to regulate themselves according to the needs and policies that apply in each country while not contradicting with the rules in the conventions and protocols. 2. implementation of food safety of genetically modified organism in indonesia a. law number 7 of 1996 concerning food (updated to law number 18 of 2012 concerning food) in detail, the definition of gmo food products is anything comes from biological sources of the agricultural, plantation, forestry, fishery, livestock, aquatic, and water products, whether processed or unprocessed that are intended as food or drinks for human consumption, including additives food, food raw materials, and other materials used in the process of preparing, processing and/or making food or drinks produced from genetic engineering processes. food safety is organized to keep food safe, hygienic, quality, nutritious, and not contrary to the religion, beliefs and culture of the community. food safety is intended to prevent the possibility of biological, chemical and other contaminants that can disturb, harm and endanger human health.35 the government and local governments ensure the realization of the implementation of food security in each food chain in an integrated manner. as an executor, the government sets food safety norms, standards, procedures and criteria whereby farmers, fishermen, fish growers, and food businesses must implement food safety norms, standards, procedures and criteria that have been set. the implementation of the norms, standards, procedures and criteria for food safety will be carried out in stages based on the type of food and the scale of the food business. in this case, the government and/or regional government must develop and supervise the implementation of food safety norms, standards, procedures and criteria.36 the implementation of food safety is carried out through a. food sanitation; b. regulation of food additives; c. regulation of prg food; d. regulation of food irradiation; e. setting food packaging standards; f. granting guarantees for food safety and food quality; and g. halal product guarantee for those who are required. one of the implementations of food safety is carried out through the regulation of genetically engineered food products, where food produced from genetic engineering must obtain food safety approval before being circulated. food production processes are prohibited from using raw materials, food additives, and/or other materials produced from food genetic 34 article 23 of the cartagena protocol on biosafety. 35 article 67 of law number 18 year 2012 concerning food. 36 article 68 of law number 18 year 2012 concerning food. food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 48 engineering that have not yet received food safety approval before being circulated. the government gave food safety approval. the government establishes the requirements and principles of research, development, and utilization of food genetic engineering methods in food production activities or processes. it stipulates the requirements for testing food produced from food genetic engineering. b. law number 36 of 2009 concerning health law number 36 of 2009 concerning health in the sixteenth part regulates the security of food and beverages which will be circulated in indonesia. it is said every person and/or legal entity that manufactures, processes. it distributes food and beverages which are foods and beverages produced from genetically engineered technology that is circulated must ensure that it is safe for humans, animals that humans eat, and the environment.37 the explanation above clearly states humans will consume food or drinks, whether derived from plants or animals resulted by gmo. it must be safe for human health and the environment, meaning that the food to be circulated and consumed must be safe and do not adversely affect human health or the environment. the ways of producing and promoting genetically engineered food and beverage products must provide true information about these products, which will not deceive and cover up the truth that food and beverage products that are produced and promoted are genetically engineered products. genetically engineered food and feed must not adversely affect human health, animal health, or the environment or mislead consumers,38 as stated in article 110 of this law which states that: “any person and/or legal entity manufactures promote food and beverage products and/or which is treated as processed food and beverage technology is prohibited from using words that are deceiving and/or that are accompanied by claims that cannot be verified”. c. government regulation number 69 of 1999 concerning food labels and advertisements one of the goals of regulating, fostering and controlling food is the creation of honest and responsible food trade. food labels and advertisements are facilities in food trading activities that have an important meaning, so they need to be regulated and controlled, so that information about food delivered to the public is true and not misleading. labels for genetically engineered foods must be labelled gmo, if genetically engineered food is an ingredient used in a food product, on the label it is sufficient to include information about genetically engineered food on ingredients which are genetically engineered food. in addition to the inclusion of writing on the label can be included a special logo of genetically modified food.39 d. government regulation number 21 of 2005 concerning biological safety of genetically modified organism jo government regulation number 28 of 2004 concerning quality safety and food nutrition this government regulation is intended to realize environmental security, food security and/or security of gmo feed and its use in agriculture, fisheries, forestry, industry, environment, and non-pharmaceutical health. the improvement of the effectiveness of gmo for people’s welfare is based on the principles of health and management of biological 37 article 109 of law number 36 year 2009 concerning health. 38 knut j. heller, genetically engineered food methods and detection second, updated and enlarged edition. (germany: bibliographic information published, 2006), 135. 39 article 35 government regulation number 69 of 1999 concerning food labels and advertisements. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 49 resources, consumer protection, legal certainty and certainty in conducting business.40 food safety of gmo is the conditions and efforts to prevent the possibility of adverse impacts and endanger human health, due to the process of production, preparation, storage, distribution and utilization of genetically modified food products.41 genetically modified products or modified organisms, hereinafter abbreviated as gmo, are living organisms, their parts and/or their processed products which have a new genetic makeup from the application of modern biotechnology. types of gmo include a. gmo animals, materials from gmo animals, and their processed products; b. gmo fish, ingredients from gmo fish, and their processed products; c. gmo plants, materials from gmo plants, and their processed products; d. gmo microorganisms, materials from gmo microorganisms, and their processed products. the government regulation regulates the safety and quality of food for gmo in article 14 which states that “everyone who produces food or uses raw materials, food additives, and / or other auxiliary materials in activities or processes of food production resulting from the process genetic engineering must first check the safety of the food before it is distributed”. the food safety inspection of gmo is carried out by a commission that handles food safety of genetically engineered products. genetic information, including general descriptions of genetically modified food products and descriptions of hosts and their use as food; a. description of donor organisms; b. description of genetic modification; c. characterization of genetic modification; d. food safety information, including substantial equivalence, changes in nutritional value, allergens and toxicity. e. government regulation number 102 the year 2000 concerning national standardization standardization is the process of formulating, establishing, implementing and revising standards, which is carried out in an orderly manner and in collaboration with all parties. the scope of national standardization covers all activities related to technical metrology, standards, testing and quality.42 judging from the scope of national standardization which includes standards, testing and quality, it can be interpreted that national standardization also includes standards, testing and food quality that will circulate in indonesia, both domestic and imported food. this is in accordance with article 19 paragraph (1) which reads: “indonesian national standards that are enacted compulsorily apply equally to both goods and or services of domestic production and to imported goods and or services”. one of the goals of the application of national standardization is to increase protection for consumers, business people, workers, and other communities both for safety, security, health and preservation of environmental functions.43 from the goal of implementing national standardization, we can know that safety, security and public health are the main priorities along with environmental preservation. this also applies in the application of national standards for food, where food must be good for the safety, security and health of the community/people who produce and consume it. f. presidential regulation number 53 the year 2014 amendment to presidential regulation number 39 the year 2010 concerning the commission on biosafety of genetically modified organism 40 article 2 government regulation number 21 of 2005 concerning biological safety of genetically modified organism. 41 article 1 paragraph (3) government regulation number 21 year 2005 concerning biological safety of genetically modified organism. 42 article 2 government regulation number 102 of 2000 concerning national standardization. 43 article 3 paragraph (1) government regulation number 102 of 2000 concerning national standardization. food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 50 the commission on biological safety of genetically engineered products (kkh prg) is a non-structural institution that is under and is responsible to the president. kkh prg has the following tasks: 44 1) provide biological safety recommendations to the minister of the environment, the authorized minister, and the head of the authorized non-ministry government institution as a basis for consideration for the issuance of gmo release and/or distribution decisions; 2) provide certificates of the results of tests of environmental safety, food security and/or feed security to the minister of the environment, the authorized minister, and the head of the authorized non-ministry government institution as a basis for consideration of issuing decisions on the release and/or circulation of the gmo; 3) provide advice and considerations to the minister of environment, the authorized minister, and the head of the non-ministerial government institution authorized in the stipulation of guidelines for impact monitoring, risk management and withdrawal of gmo from circulation; and 4) assist the minister of environment, the minister who is authorized, and the head of the non-ministry government institution authorized to carry out oversight of the import and use of the gmo as well as the examination and verification of the truth of reports of the negative impacts of the prg. kkh gmo functions: 1) formulation of materials for the preparation of guidelines for the assessment of environmental safety, food security, as well as monitoring the use of gmo; 2) the assignment of the minister of the environment, the minister who is authorized, and the head of the non-ministry government institution authorized to carry out a technical assessment and/or evaluation of the application for environmental safety, food security, and/or food security to release and/or circulate the gmo; 3) providing relevant information services on the implementation of environmental security, food security in the use of gmo through the biosafety clearing-house, hereinafter abbreviated bkkh; 4) management of information on the assessment of environmental safety, food safety and/or food security through bkkh; 5) provision of environmental safety recommendations to the minister of environment, food security, and/or feed security to the authorized minister and the head of the non-ministerial government institution authorized for the purpose of releasing and / or circulating the gmo, both originating from abroad or from within the country; 6) providing recommendations for control and mitigation in the event of a negative impact on the release, distribution and/ r use of the prg to the minister of the environment, the authorized minister, and the head of the authorized non-ministry government institution; 7) the assignment of the minister of the environment, the authorized minister, and the head of the non-ministerial government institution authorized to carry out the examination and verification of reports on the emergence of negative impacts on the environment, human health, and/or animal health caused by release, distribution, and/or the use of gmo; 8) implementation of cooperation and consultation with various institutions both inside and outside the country in environmental safety, food security; 9) organizing evaluation and testing of environmental safety, food security, due to the use of prg; 44 article 6 presidential regulation number 39 of 2010 concerning the biosafety commission for genetically modified organism. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 51 10) providing input to the minister of the environment, the authorized minister, and the head of the non-ministerial government institution authorized in the establishment of guidelines for monitoring and impacting gmo risks; and 11) providing input to the minister of environment, the authorized minister, and the head of the non-ministerial government institution authorized in the establishment of prg withdrawal procedures that harm the environment, human health, and/or animal health.45 g. decree of the minister of maritime affairs and fisheries number 52a/kepmenkp/2013 concerning requirements for quality assurance and safety of fishery products in the production, processing and distribution process this ministerial decree is set with the intent as a guideline or reference for business actors in the field of fisheries to apply the quality assurance requirements and safety of fishery products in the production. processing and distribution processes to obtain fishery products that meet the quality assurance and safety of fishery products that do not endanger human health.46 business actors as part of food distribution in indonesia, in this case, fishery food products must meet the quality assurance and food safety requirements in terms of production, processing and distribution to the public. the quality assurance system requirements for businesses in the fishery sector in implementing a quality assurance system must be:47 a) meet the hygiene requirements in accordance with the requirements; b) applying requirements in preventing biological, chemical and physical hazards to fishery products that are processed according to standards and regulations in accordance with product specifications; c) has the program / procedure needed to fulfill the requirements stipulated in this ministerial decree; d) implementing temperature control requirements by maintaining a cold chain of fishery products or in accordance with product specifications; e) collaborate with competent authorities to enable quality control officers to exercise control in accordance with applicable regulations; f) ensure that employees who handle fishery products have been supervised and directed and / or trained on the requirements and application of food sanitation and hygiene in accordance with activities at their workplace; g) ensure that employees are able and responsible for developing and maintaining required procedures; and h) ensure that employees who handle fishery products are not suffering or as carriers of certain diseases that have the potential to cause contamination of fishery products. h. regulation of the head of drug and food supervisory agency number 19 of 2016 concerning amendment to the regulation of the head of the drug and food supervisory agency number hk.03.1.23.03.12.1563 of 2012 concerning guidelines for the assessment of safety of genetically modified organism genetically modified organism food products both gmo food produced domestically or imported into the territory of indonesia, before being circulated must first be assessed for gmo food safety. prg food safety assessment is carried out by the biodiversity product biodiversity commission (kkh gmo) in the context of providing recommendations to the head of bpom, where the assessment is carried out in accordance with the guidelines for gmo 45 article 7 presidential regulation number 39 of 2010 concerning the biosafety commission for genetically modified organism. 46 chapter i purposes and objectives of the decree of the minister of maritime affairs and fisheries number 52a / kepmen-kp / 2013 concerning requirements of quality assurance and safety of fishery products in the production, processing and distribution process. 47 chapter ii requirements for guaranteeing quality and safety of fishery products decree of the minister of maritime affairs and fisheries number 52a/kepmen-kp/2013 concerning requirements for quality assurance and safety of fishery products in the production, processing and distribution process. food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 52 food safety assessment.48 it is excluded for gmo processing aid which is used in food products and does not contain gmo dna and/or prg protein. the issuance of a gmo food distribution permit is carried out based on a recommendation from the kkg gmo to the head of bpom which contains the decision to issue a permit or rejection of a gmo food distribution permit. the decision on the prg food distribution permit is stated or used as a gmo food safety certificate in the context of overseeing the gmo food circulation. i. regulation of the head of the drug and food supervisory agency number hk.03.1.23.03.12.1564 of 2012 concerning supervision of food labeling of genetically modified organism gmo food that will be circulated in a packed condition, the label must contain information in the form of writing genetic modified organism.49 the article is included if the food contains at least 5 (five) per cent of gmo food, based on the percentage of the gmo deoxyribonucleic acid (dna) content of the non-gmo deoxyribonucleic acid content. if the food contains more than 1 (one) gmo food, the percentage of the content is carried out for each gmo food.50 foods that use 1 (one) gmo food as a single ingredient are listed after writing the name of the type of food on the main part of the label. if food using gmo food is listed after writing the name of the food ingredient concerned in the list of ingredients used the font size for writing must be the same as the letter size of the name of the type of food or the name of the food ingredient.51 gmo food that is traded in bulk or in an unpackaged condition must be given clear information that the food is gmo food that is placed in such a way that it is easily visible and must be in a container or close to the container where the food is sold.52 the problem that occurs is the difficulty of controlling bulk or unregistered foods such as tempeh that are wrapped in such a way without writing down that the food has gone through a genetic modifies organism. implementation of food safety arrangements in indonesia for the ratification of the convention on biological diversity with the enactment of law number 5 of 1994 and law number 24 of 2004 concerning ratification of the cartagena protocol contained in several laws and regulations as a follow up to the international rules which provide sovereignty in each country to make implementing regulations in accordance with the needs and policies in force in the country which of course remains in accordance with these international rules. the laws and regulations governing gmo food in indonesia are good enough because they have carried out the mandate and did not deviate from the biodiversity convention and cartagena protocol by ratifying the legislation regarding gm food from the legal level to the decision level of the head of bpom. it’s just that for rules regarding gmo food that is sold in bulk, or that is not in the form of packaging, there is still no technical rules that can answer the problem in the field. c. conclusions 48 article 3 regulation of the head of the drug and food supervisory agency number 19 of 2016 concerning amendment to the regulation of the head of the drug and food supervisory agency number hk.03.1.23.03.12.1563 of 2012 concerning guidelines for the assessment of safety of genetically modified organism. 49 article 5 regulation of the head of the drug and food control agency number hk.03.1.23.03.12.1564 of 2012 concerning supervision of food labeling of genetically modified organism. 50 article 7 regulation of the head of the drug and food control agency number hk.03.1.23.03.12.1564 of 2012 concerning supervision of food labeling of genetically modified organism. 51 article 8 regulation of the head of the drug and food control agency number hk.03.1.23.03.12.1564 of 2012 concerning supervision of food labeling of genetically modified organism. 52 article 6 regulation of the head of the drug and food control agency number hk.03.1.23.03.12.1564 of 2012 concerning supervision of food labeling of genetically modified organism. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 53 regulation of food security for genetically modified organism according to international law is regulated in the convention on biological diversity and the cartagena protocol. however, these regulations only provide general rules on how to use biodiversity, which includes food safety. in its implementing regulations, the regulation gives sovereignty to state parties to contain their regulations that are in accordance with the needs that apply in each country, as long as they do not conflict with the rules contained in the conventions and protocols. the laws and government regulation about prg food in indonesia are good enough because they have carried out the mandate and did not deviate from the biodiversity convention and cartagena protocol by passing legislation regulations from the legal level to the decision level of the head of bpom. regarding the rules regarding prg food sold in retail, or not in the form of packaging, there is still no technical regulation that can answer the problems in the field. in addition, there is a lot of circulation of prg food, but it is not in accordance with the requirements for labelling, national standardization, and good production methods. so, it takes many parties, such as the government check directly to the field, producers must be aware of the importance of maintaining their products so as not to endanger human health and the environment, and consumers must be smart in choosing the food they consume. suggestion based on the conclusions, suggestions can be made for additional protocols and rules to discuss in more detail the food of a genetically modified organism. then with the existence of a special international body or organization that handles in the field of a genetically modified organism that regulates and standardizes the food of genetically modified organism as a reference for countries in making national rules. the needs for formulation and ratification of laws and regulations governing food that is sold in retail, and food that has not been in the form of packaging which is sold freely in the community. food safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 54 references a. journal and thesis andreas, ricco., suryadi, bambang. “nilai islam dan pancasila: pengaruh globalisasi dan modernisasi dalam pembangunan sistem hukum di indonesia”. nizham 07, no. 1, 2019: 80-97. pasaribu, indra p. “tinjauan hukum internasional terhadap pertanggungjawaban dan upaya pemulihan (liability and redress) atas kerugian yang timbul dari perpindahan lintas batas organisme hasil modifikasi genetik”, a thesis, department of international law, faculty of law, university of north sumatra, medan, 2011. syarifudin, ahmad. “implikasi adanya upaya hukum terhadap putusan bawaslu tentang pelanggaran administratif pemilu problematic of settlement of election administrative of violation’s.” cepalo 4, no. 1, 2020: 1–12, doi: 10.25041/cepalo.v4no1.1897. b. book global village translations. pengelolaan keanekaragaman hayati. jakarta: persemakmuran australia, 2007. heller, knut j. genetically engineered food methods and detection. germany: bibliographic information published, 2003. heller, knut j. genetically engineered food methods and detection second, updated and enlarged edition. germany: bibliographic information published, 2006. koch, bernhard a. economic loss caused by genetically modified organisms liability and redress for adventitious presence of gmos in non-gm crops. germany: european centre of tort and insurance law, 2007. mackenzie, ruth. an explanatory guide to the cartagena protocol on biosafety. switzerland: iucn environmental law centre, 2003. nelson, gerald c. genetically modified organisms in agriculture economics and politics. usa: academic press, 2001. pollack, mark a. when cooperation fails the international law and politics of genetically modified foods. new york: oxford university press, 2009. rifkin, jeremy. the biotech century: how genetic commerce will change the world. london: phoenix, 1998. smith, john e. biotechnology. jakarta: egc, 1995. social economic environmental. praktek unggulan program pembangunan berkelanjutan untuk industri pertambangan. australia: social economic environmental, 2007. somsen, han. the regulatory challenge of biotechnology human genetics, food and patents. uk: edward elgar publishing limited, 2007 terje traavik and lim li ching. biosafety first-holistic approaches to risk and uncertainty in genetic engineering and genetically modified organism. third world network and genok, 2009. c. regulation cartagena protocol on biosafety 2003. convention on biological diversity, 1993. decree of the minister of maritime affairs and fisheries number 52a/kepmen-kp/2013 concerning requirements for quality 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safety of genetically modified organism … risa mahdewi & desia rakhma banjarani 56 11 institutional role in relation to legal policy towards of children’s rights to exclusive breastfeeding lenny syahnimar dinas kesehatan kota bandar lampung, indonesia, email: lenny.syahnimar@gmail.com submitted: january 6, 2020; reviewed: january 28, 2020; accepted: february 3, 2020 article info abstract keywords: breastfeeding, institution, support. doi: 10.25041/lajil.v2i1.2029 breastfeeding is one of the best buys in global health to save lives and improve the health, social, and economic development of individuals and nations. inadequate breastfeeding impacts a child’s ability to learn, and consequently, their future earning potential. by supporting mothers to practice proper breastfeeding, nearly 50 per cent of under two child deaths caused by diarrhoea and pneumonia could be prevented annually compared to a situation with no breastfeeding. this study aims to understand and analyze the role institutions and legal policy towards the fulfilment of children’s rights to exclusive breastfeeding. this research is normativeempirical legal research. primary data was obtained through interviews with sources, while secondary data is attained through literature studies on legal material. data analysis is carried out with a qualitative approach. results: institutional is a set of rules of all levels that revolve around a fundamental need in the social life of society. the institutional role is to meet the basic needs of citizens regarding an order, guidelines on how to behave, and as social control. legal rule the exclusive nursing program policy is based on the provisions of the law no. 36 of 2009 with the form of regulation through government regulations no. 33 of 2012. a. introduction breastfeeding is an ideal nutrient to support the health, growth, and development of babies. babies are recommended to be exclusively breastfed during the first six months and continued with complementary foods in their first two years of life.1 various studies have shown that breastfeeding provides many physiological and emotional benefits.2 the benefits of 1 badriul hegar, nilai menyusui (2010), 1-12, in idai, indonesia menyusui (jakarta: badan penerbit idai), 1-2. 2 edelwina umboh, rocky wilar, max f. j. mantik, “pengetahuan ibu mengenai manfaat asi pada bayi”, jurnal e-biomedik (ebm) 1, no. 1, (2013): 210-214, 211. volume 2 issue 1, 2020: pp. 11-24. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:lenny.syahnimar@gmail.com https://doi.org/10.25041/lajil.v2i1.2029 institutional role in relation to legal policy towards of … lenny syahnimar 12 breastfeeding for babies are breast milk has optimal nutrition, both in quantity and quality.3 furthermore, it is always available in a clean condition, anytime and in the right temperature of the mother’s breast, easily digested and absorbed by the body.4 breastfeeding benefits the mother by managing fertility, reducing the risk of osteoporosis, ovarian cancer, and breast cancer, and type ii diabetes.5 in addition, breastfeeding helps mothers gain back the weight as it was before, reduce postpartum bleeding.6 moreover, breastfeeding benefits families and society (environment) such as reducing poverty and hunger, and reduce the cost of health care budgets.7 unicef states that the exclusive breastfeeding (no food or extra drinks for the babies) it should be able to prevent the death of 30,000 infants in indonesia and 10 million toddlers in the world each year. lancet, in 2010, emphasized this statement as well on his research by arguing that exclusive breastfeeding could cut infant mortality by 13% and the prevalence of stunting.8 stunting is a failed condition of a toddler to grow because of the chronic malnutrition. thus, the height is not ideal for their age.9 stunting occurs because of the impact of chronic malnutrition in the first 1,000 days of a child’s life, and exclusive breastfeeding is not given to the baby.10 current studies show that stunting is strongly associated with poor educational performance, decreased education duration and low-income as adults.11 therefore, stunting children are a predictor of the poor quality of widely accepted human resources, which in turn decreases the productive capacity of a nation in the future.12 the level of exclusive breastfeeding based on riskesdas in 2010 was only 15.3 per cent.13 riskesdas in 2013 increased to 30.2%14 and 2018 by 37.3%.15 nurhira abdul kadir classified the causes of the low percentage of exclusive breastfeeding in indonesia in two problems, namely internal problems and external problems. internal problems consist of physical problems, psychological problems, delayed early breastfeeding initiation, and mother’s work and education. at the same time, obvious problems include family problems, food security, 3 yusuf hanafi, “peningkatan kecerdasan anak melalui pemberian asi dalam alqur’an”, mutawâtir: jurnal keilmuan tafsir hadis 2, no. 1 (2012): 27-45, 28, doi: 10.15642/mutawatir.2012.2.1.27-45. 4 f.b. monika, buku pintar asi dan menyusui (jakarta: noura books, 2014), 6. 5 putri nilam sari, “meningkatkan kesuksesan program asi eksklusif pada ibu bekerja sebagai upaya pencapaian mdgs”, jurnal kesehatan masyarakat andalas 9, no. 2 (2015): 93-97, 94, doi: 10.24893/jkma.v9i2.194. 6 maria pollard, asi asuhan berbasis bukti (jakarta: egc, 2015), 4. 7 f.b. monika, op.cit., 9-10. 8 kementerian kesehatan ri, pokok-pokok peraturan pemerintah no. 33 tahun 2012 tentang pemberian air susu ibu eksklusif (jakarta: kementerian kesehatan ri, 2012), 7. 9 tim nasional percepatan penanggulangan kemiskinan (tnp2k), 100 kabupaten/kota prioritas untuk intervensi anak kerdil (stunting) ringkasan (jakarta: tim nasional percepatan penanggulangan kemiskinan, 2017), 2. 10 farah okky aridiyah, ninna rohmawati, mury ririanty, “faktor-faktor yang mempengaruhi kejadian stunting pada anak balita di wilayah pedesaan dan perkotaan”, e-jurnal pustaka kesehatan 3, no. 1 (2015): 163-170, 165. 11 eko setiawan, rizanda machmud, masrul, “faktor-faktor yang berhubungan dengan kejadian stunting pada anak usia 24-59 bulan di wilayah kerja puskesmas andalas kecamatan padang timur kota padang tahun 2018”, jurnal kesehatan andalas 7, no. 2 (2018): 275-284, 276, doi: 10.25077/jka.v7i2.813. 12 trihono, pendek (stunting) di indonesia, masalah dan solusinya (jakarta: badan penelitian dan pengembangan kesehatan, 2015), 1-2. 13 kementerian kesehatan, op.cit., 6-7. 14 badan penelitian dan pengembangan kesehatan, riskesdas 2013 (jakarta: kementerian kesehatan ri, 2013), iv. 15 badan penelitian dan pengembangan kesehatan, hasil utama riskesdas tahun 2018 (jakarta: kementerian kesehatan ri, 2018), 44. https://doi.org/10.15642/mutawatir.2012.2.1.27-45. https://doi.org/10.15642/mutawatir.2012.2.1.27-45. https://doi.org/10.24893/jkma.v9i2.194 https://doi.org/10.25077/jka.v7i2.813 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 13 geographical area, the role of media, water, hygiene and sanitation, health professionals, poverty, cultural beliefs and practices, and government involvement.16 given the variety of goodness in breastfeeding, the government has provided legal protection through law no. 36 of 2009 article 128.17 government involvement is the key to build a conducive breastfeeding situation.18 in addition, the right to breastfeed for women workers has been regulated by article 83 of law no.13 / 2003 actually have sufficiently accommodated ilo convention no. 183 of 2000 concerning maternity.19 breastfeeding is the right of every mother, including working mothers, as well as children’s rights, which are guaranteed by the constitution.20 the child’s right to survive is specifically regulated in article 28b paragraph (2) of the 1945 constitution.21 national regulations actually guarantee the rights of women, such as breastfeeding rights. but in some cases, these rights are not properly implemented or non-fulfillment of the right of the child to get breastfeed.22 the problem of not fulfilling the right of the baby in obtaining exclusive breastfeeding has come to the attention of the world health organization (who) and also the indonesian government, bearing in mind the interests of the baby in getting exclusive breastfeeding, it is necessary to obtain legal protection.23 breastfeeding is one of the first steps for a human being to get a healthy and prosperous life.24 when the babies have been born, breast milk and other primary health services are mandatory to liberate the children from the possibility of disability and disease.25 the legal function is a social institution, namely a set of rules from all levels that revolve around a basic need in the social life of the community. it is as a result of the purpose of the law, namely to fulfil the basic needs of the community in order and as a social institution. thus, the law serves as a guideline on how to behave, as a tool to safeguard people’s needs and as social control.26 the institution is one of the government institutions responsible for the success of the exclusive 16 nurhira abdul kadir, “menelusuri akar masalah rendahnya persentase pemberian asi eksklusif di indonesia”, jurnal al hikmah 15, no. 1 (2014): 106-118, 108113. 17 tuti haryanti, nurhayati, “penegakan hukum hak asasi manusia bagi anak penderita stunting”, jurnal ham 10, no. 2 (2019): 249-260, 256, doi: 10.30641/ham.2019.10.249-260. 18 ibid, 114. 19 h marlia eka putri a.t, “tinjauan atas perlindungan hukum terhadap hak menyusui anak selama waktu kerja di tempat kerja bagi pekerja perempuan”, fiat justisia: jurnal ilmu hukum 5, no. 3 (2011): 307-314, doi: 10.25041/fiatjustisia.v5no3.331. 20 herning hambarrukmi, triana sofiani, “kebijakan pemberian asi eksklusif bagi pekerja perempuan di indonesia”, muwazah 8, no. 2 (2016): 268-286, 268. 21 saldi isra, “peran mahkamah konstitusi dalam penguatan hak asasi manusia di indonesia”, jurnal konstitusi 11, no. 3 (2014): 409-427, 416, doi: 10.31078/jk%25x. 22 sulthon miladiyanto, ariyanti, “perlindungan hukum terhadap hak-hak reproduksi pekerja wanita (perspektif undang-undang ketenagakerjaan di indonesia dan malaysia)”, jurnal panorama hukum 2, no. 1 (2017): 53-68, 61, doi: 10.21067/jph.v2i1.1755. 23 edy nurcahyo, siti khuzaiyah, “perlindungan hukum bayi melalui pemberian asi eksklusif dalam prespektif undang-undang nomor 36 tahun 2009 tentang kesehatan”, jurnal cendekia hukum 4, no 1 (2018): 52-64, 54, doi: 10.33760/jch.v4i1.59. 24 yanik muyassaroh, rizky amelia, komariyah, “faktor penghambat pemberian asi eksklusif pada ibu bekerja di kota blora”, jurnal kebidanan 8, no. 1 (2018): 10-21, 10, doi:10.31983/jkb.v8i1.3730. 25 maidin gultom, perlindungan hukum terhadap anak dan perempuan (bandung: refika aditam, 2013): 7072. 26 zainuddin ali, metode penelitian hukum (jakarta: sinar grafika, 2016), 124. http://dx.doi.org/10.30641/ham.2019.10.249-260 https://doi.org/10.25041/fiatjustisia.v5no3.331 https://doi.org/10.31078/jk%25x https://doi.org/10.21067/jph.v2i1.1755 https://dx.doi.org/10.33760/jch.v4i1.59 https://doi.org/10.31983/jkb.v8i1.3730 institutional role in relation to legal policy towards of … lenny syahnimar 14 breastfeeding program.27 all existing institutions should be seen as part of the whole legal system that needs to be developed within the framework of the indonesian rule of law.28 therefore, it is necessary to discuss the role of institutions in law enforcement in fulfilling the right of children to obtain exclusive breastfeeding. in current law enforcement practices, it is still common for law enforcement officials to use their authority.29 this study aims to understand and analyze the role of institutions in relation to legal policy towards the fulfilment of children’s rights to exclusive breastfeeding. this research is normative-empirical legal research. normative legal research is based on data obtained from literature studies. empirical legal research is by obtaining primary data in the form of interviews and observations supported by secondary data.30 data analysis is carried out with a qualitative approach. b. discussion community institutions are a set of norms of all levels that revolve around a basic need in the social life of the community.31 this means as a procedure that has been created to regulate human relations in groups in a social group commonly called associations.32 therefore, social institutions when viewed from their functions can be interpreted as a network of human relations processes, between human groups that function to maintain the relationship, and patterns according to the interests of humans and their groups.33 social institutions are made and created as facilities to help the creation of fulfilment of the needs of the members of the community concerned. in order to fulfil the needs to run smoothly, the community provides a container that allows all processes to run regularly. provision of these containers, through rules, develops values related to meet certain needs. therefore, social institutions try to fulfil basic needs in an orderly and orderly manner.34 based on the understanding of institutions, social institutions, and social institutions above, zainuddin ali considers law as a social institution, which is a set of rules from all levels that revolve around a basic need in the social life of the community. this is as a result of the purpose of the law to fulfil the basic needs of citizens with regard to order, and as a social institution, hence, the law serves as a guideline on how to behave, as a tool to safeguard people’s needs and as social control.35 besides, according to joseph raz, the primary social, legal function 27 angga sisca rahadian, “pemenuhan hak asi eksklusif di kalangan ibu bekerja: peluang dan tantangan”, jurnal kependudukan indonesia 9, no. 2 (2014): 109-119, 3, doi: 10.14203/jki.v9i2.40. 28 dedi sumanto, “penegakan hukum dan pembangunan hukum di indonesia”, jurnal almizan 10, no. 1 (2014): 121-139, 123. 29 zahri kurniawan, ilham wahyudi, and h s tisnanta, “the right non-self-incrimination and epistemology of criminal witnesses,” fiat justisia: jurnal ilmu hukum 14, no. 4 (2020): 363–380, 364, doi: 10.25041/fiatjustisia.v14vno4.1988. 30 felishella earlene, jesslyn evelina tandrajaya, “sengketa penguasaan tanah antara warga kapuk poglar rt 07/rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia”, jurnal cepalo 3, no. 2 (2019): 52-62, 57, doi: 10.25041/cepalo.v3no2.1844. 31 sri wulandari, “peran badan perencanaan pembangunan daerah dalam pelaksanaan musrenbang di kota tarakan”, ejournal administrasi negara 1, no. 4 (2013): 111, 1. 32 frangky benjamin kandioh, johny lumolos, markus kaunang, “eksistensi kelompokkelompok sosial dalam melestarikan nilai-nilai budaya di desa kamangta kecamatan tombulu kabupaten minahasa”, society jurnal ilmu sosial dan pengelolaan sumber daya pembangunan 21, no. 1 (2016): 49-62, 54. 33 soerjono soekanto, sosiologi suatu pengantar (jakarta: rajawali press, 1990), 218, in zainuddin ali, op.cit., 123-124. 34 satjipto rahadjo, ilmu hukum (bandung: alumni, 1982), 31, in zainuddin, op.cit., 124. 35 zainuddin ali, loc.cit. https://doi.org/10.14203/jki.v9i2.40 https://doi.org/10.25041/cepalo.v3no2.1844 lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 15 directly in the prevention of certain actions, encouraging certain actions and providing facilities for private plans.36 the institutional objective of making legislation is to maintain and observe all structures and processes related to the activities and efforts to realize the fulfilment of the need for legislation on the one hand and efforts to facilitate the fulfilment of needs on the other side. good legislation reflects juridical, sociological and philosophical aspects. this means creating a statutory regulation that gets the right place and influence so that it can be adhered to by the citizens of the community spontaneously and not by force because it fits the legal culture adopted by the citizens.37 these are by the national legal politics contained in the decree of the mpr no. ii/mpr/1993 concerning the guidelines of state policy, especially in the field of law, namely: in the formation of law it is necessary to heed provisions that fulfil philosophical values which have a sense of justice and truth, sociological values that are by the cultural values prevailing in society and juridical value in accordance with the provisions of the applicable legislation. in the preparation of government regulation number 33 of 2012, there are three foundations, namely: philosophical foundation, sociological foundation, and juridical foundation. 1. philosophical foundation health is a human right and one of the elements of welfare that must be realized in accordance with the ideals of the indonesian people as intended in pancasila and the 1945 constitution of the republic of indonesia. human rights and the right of babies to obtain breast milk are protected in the indonesian constitution and several laws and regulations. even though many babies who do not get breast milk and become victims of violence and human rights violations still occur in the life of society, nation, and state. as a result of low levels of education, low health facilities and socio-cultural influences that still place women and babies in vulnerable groups, maternal and child mortality rates are still high. as long as there are no clear rules to protect the rights of women working in factories, animal husbandry, and agriculture, how can they still exercise their rights and fulfil their breastmilk needs? government regulations on breastfeeding are formed in order to provide protection for babies to get their rights to exclusive breastfeeding. 2. sociological platform the best pattern of feeding for babies from birth to 2-year-old children as recommended by who and unicef or known as the global strategy of infant and young child feeding (gsiycf) often called standard gold feeding in infants and children, includes: (1) giving breast milk to the baby immediately within one hour after birth; (2) giving only breast milk from birth to 6 months of age (exclusive breastfeeding); (3) providing complimentary food, which is exactly six months old; and (4) continue breastfeeding until the child is two years or older. the application of this feeding pattern will improve the nutritional status of infants and children and influence subsequent health status. unfortunately, right now, the implementation of the best feeding pattern recommendations has not been appropriately implemented, particularly in the case of 6 months of exclusive breastfeeding. some of the reasons the low rates of exclusive breastfeeding are: (1) social conditions of the community where the mother has low confident on her ability to breastfeed her baby, thus the baby’s nutritional needs are sufficient; (2) lack of knowledge of the mother, lack of family support, traditions and/or culture that can inhibit breastfeeding, as well as low public awareness about the benefits of exclusive 36 zaeni asyihadie and arief rahman, pengantar ilmu hukum, ed.1 (jakarta: rajawali pers, 2013), 132. 37 zainuddin ali, op.cit., 125. institutional role in relation to legal policy towards of … lenny syahnimar 16 breastfeeding; (3) lack of support from health workers, health service facilities, as well as from employers and service providers of public and special facilities; and (4) the influences of improper promotions from producers of baby food and drinks and other baby products. the government regulation on breastfeeding strengthens the exclusive breastfeeding activities for babies and the activities of health cadres in posyandu and puskesmas. the cadres encourage the mothers to breastfeed for the first six months exclusively and breastfeed, accompanied by natural food and/or home cooking, until the baby two years old. 3. juridical platform based on these philosophical and sociological, the government is responsible for establishing the policies in order to guarantee the rights of infants and children to obtain breast milk. as the outcome, the government issued the regulation of breastfeeding in law number 36 of 2009 article 128its article 129 regulates the technical issue of article 128. furthermore, to follow-up article 129, the government has issued government regulation no. 33 of 2012 on march 1, 2012.38 4. legal basis for compiling written policies on exclusive breastfeeding a. international labor organization convention (ilo) number 183/2000 about the revision of the convention on maternity protection (revised 1952) under article 10 of the international labor organization convention (ilo) number 183/2000, the state must support & guarantee the activity of breastfeeding mothers’ rights. this article regulates that:39 1) women must be given the right to daily rest or a reduction in daily work hours to breastfeed their children. 2) how long a breastfeeding break or a reduction in daily work hours will be given, how many in a day, each time these breaks and methods of reducing daily work hours are regulated according to national law and practice. rest and reduction of daily work hours must be counted as work hours and paid for. international labor organization convention (ilo) number 183/2000 aims at equality of women as workers and ensuring the health and safety of mothers and children in various industries. indonesia did not specifically ratify this convention because its contents have been accommodated in national provisions, namely in law number 13 of 2003 concerning labour.40 b. legal basis, namely the 1945 constitution of the republic of indonesia 1) article 28 b paragraph (2). every activity in an effort to maintain and enhance the highest degree of public health is carried out based on non-discriminatory, participatory, and sustainable principles in the framework of forming indonesia’s human resources, as well as increasing the nation’s resilience and competitiveness for national development. the provisions of the 1945 constitution show that children are the next generation that will become leaders in the future. consequently, healthy, intelligent and qualified children are needed to achieve national goals as referred to in the preamble of the 1945 constitution. 2) article 28, h paragraph (1). all indonesian citizens have the right to live physically and mentally prosperously, have a place to live with a good and healthy environment, and have the right to obtain health services. this right applies to children as well. we call it a child’s right. according to law no. 35 of 2014 article 1 number 12, a child’s right is part of 38 kementerian kesehatan, op.cit., 7-8. 39 h marlia eka putri a.t, op.cit., 310 40 sulthon miladiyanto, ariyanti, op.cit., 56. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 17 human rights that must be guaranteed, protected, and fulfilled by parents, family, community, state, government, and local government. in addition, according to law no. 39 of 1999, article 52 paragraph (2) states the rights of the child are recognized and protected by law even in the womb. article 1 number 2 of law no. 35 of 2014 that child protection is all activities to guarantee and protect children and their rights so that they can live, grow, develop and participate optimally in accordance with human dignity and receive protection from violence and discrimination. policies, businesses, and activities that guarantee the realization of child protection are based on the consideration that children are vulnerable and dependent groups. furthermore, through the constitutional mandate, the legal provisions concerning exclusive breastfeeding are regulated through law no. 36 of 2009. 3) article 34 paragraph (3). every development effort must be based on health insights in the sense that national development must pay attention to public health and is the responsibility of all parties, both the government and the community. the state is responsible to its citizens in providing adequate health care facilities and public facilities, including also to fulfil the rights of children to get health services. c. the law principle in law number 36 of 2009 which is related to the exclusive breastfeeding program policy health development, in law no. 36 of 2009 article 2, is carried out based on humanity, balance, benefits, protection, respect for rights and obligations, justice, gender and nondiscriminatory and religious norms implemented through health efforts as follows: 1) the principle of humanity means exclusive breastfeeding is an action to fulfil children basic need since at an early age. children have characteristics because they always grow and develop from the moment of conception until the end of adolescence. 2) the principle of equilibrium means that exclusive breastfeeding has consequences fulfilment of rights and obligations. fulfilment of rights is the right of the child to obtain exclusive breastfeeding and the obligation of the mother to give it, except on medical indications, where the family, community, government and local government are obliged to support this process. 3) the principle benefits of exclusive breastfeeding means provide benefits to infants, mothers, families, and the country. 4) the principle of the protection of exclusive breastfeeding means will provide comprehensive protection for the baby. the government will also protect the achievement of citizens’ rights in the exclusive breastfeeding process for babies who will receive the right to be breastfed (which is part of human rights which is the right to live healthily) and for the mother is the right to give breastmilk as part of parenting old. 5) the principle of respect means that the provision of exclusive breastfeeding provides an opportunity for babies to obtain the right to receive breastfed babies, the rights and obligations of breastfeeding mothers and support the implementation of breastfeeding for the community. 6) fairness means exclusive breastfeeding is indiscriminate. it is given to all children, regardless of race, ethnicity, or socioeconomic status. 7) the principle of gender and non-discriminatory means exclusive breastfeeding is one gender protection for women, in terms of meeting the reproductive rights of women, in addition to menstrual and maternity leave. 8) the principle of religious norms means that exclusive breastfeeding must pay attention and respect and not distinguish the religion adhered to by the community. according to islam, breastfeeding is in accordance with the word of allah swt in the surah al baqarah verse 233. institutional role in relation to legal policy towards of … lenny syahnimar 18 d. the purpose of arranging exclusive breastfeeding in the convention on the rights of the child article 24, which has been ratified by presidential decree no. 36 of 1990, it is clearly stated the rights of children to have benefit of the highest health status, hence the state is required to take steps to minimize infant and child mortality rates, providing basic health care for infants, children, and pregnant and lactating mothers, eradicating diseases and malnutrition, ensuring all parents are informed of basic knowledge about children’s. the foundation of long-term food and nutrition program policies at the national level is quite strong. this was formulated in law no. 17 of 2007 concerning the national long term development plan (rpjpn) for 2005-2025.41 the third phase of the rpjmn for the period 2015-2019, has also provided a strong foundation for implementing the food program and improving nutrition which is one of the outcome indicators, namely increasing the prevalence of infants aged less than 6 months who receive exclusive breastfeeding to 50% in 2019. nowadays, the government has issued law no. 36 of 2009 and government regulation no. 33 of 2012 and the policy ten steps to successful breastfeeding (the 10 lmkm who revised) that accommodates exclusive breastfeeding continues to be expanded and improved coverage—in addition, realizing the increasing number of breastfeeding women working in the public sector, the government through the ministry of women’s empowerment and child protection, the ministry of manpower and transmigration and the ministry of health and has issued joint regulations of the minister of women empowerment, minister of manpower and transmigration and minister of health no: 48/men.pp/xii/2008, per.27/men/xii/2008, 1177/menkes/pb/xii/2008 dated december 22 2008. this joint regulation is expected to be an umbrella for women workers, especially those who breastfeed to be able to breastfeed/milk breast during working time in the workplace and encourage employers to provide breastfeeding rooms that are in accordance with health standards.42 thus, the policy and target set up by the government are to optimize the implementation of law no. 36 of 2009 which has strict sanctions on those who intentionally block the exclusive breastfeeding program (article 200) and severe criminal sanctions for corporations (article 201) and the implementation of government regulations no. 33 of 2012, so that the number of exclusively breastfed babies reaches the target.43 ministry of health policy on efforts to increase breastfeeding, namely: 1) increased breastfeeding is carried out as an effort to improve the quality of human resources which are an integral part of national development, especially in improving the quality of life. 2) increasing breastfeeding is carried out cross-sectorally and integrated by involving the participation of the community, as well as the working community. 3) increasing breastfeeding focuses on empowering communities and families to support pregnant women and nursing mothers in carrying out their duties according to their nature. 4) cultivate exclusive breastfeeding behaviour for babies up to the age of 6 months. 5) increasing breastfeeding is carried out in stages and continuously at each workplace.44 government regulation no. 33 of 2012 article 3 mentions government responsibilities in exclusive breastfeeding programs, while article 4 and article 5 state the responsibilities of the provincial government and district/city. in implementing national policies, the provincial/district/city-regions can establish regional regulations or governor/regent/mayor 41 kementerian kesehatan ri, kerangka kebijakan gerakan sadar gizi dalam rangka seribu hari pertama kehidupan (1000 hpk) (jakarta: kementerian kesehatan ri, 2012), 11. 42 attchament minister of women's empowerment and child protection regulation no. 03 of 2010, 15-16 43 kementerian kesehatan ri, op.cit., 17. 44 pusat kesehatan kerja depkes ri, (n.d.), kebijakan departemen kesehatan tentang peningkatan pemberian air susu ibu (asi) pekerja wanita, jakarta: departemen kesehatan ri. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 19 regulations concerning national policies. in establishing policies for exclusive breastfeeding programs in the regions, the provincial government/ districts/cities can pay attention to the capabilities and potential of human resources, capabilities and potential sources of funding, and community support. the strategy of exclusive breastfeeding programs is carried out in an integrated, tiered, and continuous manner. referring to this, to implement the provisions of law no. 36 of 2009 article 128 and 129 and government regulation no. 33 of 2012, lampung province has issued lampung province regional regulation no. 17 of 2014 and following up on the perda also issued governor regulation number 10 in 2016. in bandar lampung city, the bandar lampung mayor has issued a circular letter number 030/792.iv.41/2012 that released on april 18, 2012, which was addressed to government and private hospitals, health centers and health service facilities providers, government and private offices, shopping centers, transport terminals, railway stations, hotels, lodging, recreation areas, and sports buildings in bandar lampung city. furthermore, some health service facilities have been issued special written policies related to the implementation of exclusive breastfeeding programs. for instance, the head of kedaton puskesmas issued decree no. 440/603/09/2018 about exclusive breastfeeding movement through the establishment of kp-asi integrates with asman, toga, and acupressure at upt kedaton inpatient health center.45 meanwhile, at the rsia belleza, the policy of exclusive breastfeeding was determined as one of the performance indicators and applied to babies born in the hospital, with the issuance of the hospital director’s policy that newborn babies in the rsia belleza work environment would only get breast milk.46 e. community participation in institutional nature in exclusive breastfeeding society has an important role in determining the success of a mother in breastfeeding and giving breast milk to her child. community-based networks and offering support from fellow breastfeeding mothers, as well as trained breastfeeding counsellors in providing support to the mothers to start and maintain breastfeeding activities, and prevent and overcome various difficulties that may occur. therefore, gsiycf recommends the government to: 1) promote the development of community-based support networks in order to ensure that proper feeding for infants and toddlers is carried out, for example, fellow support groups based on breastfeeding mothers, no medical, educational counsellor groups or fellow counsellors for nursing mothers. this network is a fellow to whom the hospital and clinic can refer to nursing mothers when they return home; and 2) ensure that the community-based support network is not only accepted in the local health system but also actively participates in planning and providing services to mothers. other sources of information and support can be found as well in various forms of formal or non-formal groups or organizations, including breastfeeding support networks and childcare, clubs, and religious-based associations. community-based support, including those provided by fellow breastfeeding mothers, breastfeeding counsellors from the general public as well as among nursing mothers, and certified breastfeeding consultants can effectively help these women to be able to provide the right food to their children. most communities have a self-help tradition that is ready to be used as the basis for building or developing a support system that is suitable for helping families in providing proper feeding for children. community participation in health efforts has been regulated in law no. 36 of 2009 article 174 and government regulation no. 33 of 2012 article 37. the implementation of community support is carried out 45 interview with the head of health care and management program of nutrition puskesmas kedaton, on wednesday, february 20, 2019. 46 interview with dr. kartika malahayati, medical service manager for rsia belleza, on friday, march 20, 2019. institutional role in relation to legal policy towards of … lenny syahnimar 20 in accordance with the capabilities of the available resources by referring to the ten steps to successful breastfeeding for the community. 5. the role of supporting groups based on fellow mothers the main objective of a support group based on fellow breastfeeding mothers is to help mothers to be able to breastfeed their babies, by: a. providing practical and scientific information as a foundation for mothers to decide to breastfeed, and b. provide moral support for mothers, whenever needed, to carry out the decisions that have been taken, and thus the mothers enjoy every experience of breastfeeding they meet. breastfeed support groups carry out this role through group meetings, home and hospital visits, telephone services, correspondence, the distribution of literature on breastfeeding, seminars, talk shows, workshops and conferences on breastfeeding and breastfeeding at every opportunity, association, and location. some of the support group members also conduct advocacy activities, in addition to providing breastfeeding counselling directly to mothers. this advocacy activity includes working with professional health workers to change hospital or maternity policies that prevent mothers from breastfeeding, and on the other hand, promote things that can support breastfeeding activities such as 24-hour mother and baby care. advocacy also includes working with fellow organizations concerned with breastfeeding and breastfeeding, both locally and internationally. furthermore is the action as an approach to government agencies and people’s representatives who specifically deal with and engage in the field of maternal and child health. the indonesian breastfeeding mothers association (aimi) was formed in 2007. this is a non-profit organization based on a group of breastfeeding mothers to disseminate knowledge and information about breastfeeding and increasing the number of breastfeeding mothers in indonesia. the aimi adherences to the principle of rejecting all forms of cooperation with products that can interfere with the breastfeeding process, including baby formula, instant baby food, pacifier bottles, and pacifiers. this is one of aimi’s efforts to maintain commitment and integrity to avoid all forms of conflict of interest. established on april 21, 2007, now aimi exists in 16 regions/provinces, namely north sumatra, bangka belitung, west sumatra, jambi, lampung, riau, south sumatra, west java, central java, yogyakarta, east java, bali, west kalimantan, east kalimantan, south kalimantan, and south sulawesi. it branches in 9 municipalities/ regencies outside the provincial capital, namely depok, cirebon, bekasi, bogor, solo, purwokerto, bantul, malang, and sorowako.47 the aimi in lampung was established in 2011. however, the formal legal (notary deed), as a form of institution that has legal strength, and the aimi’s statues and bylaws are still in aimi jakarta. “it started with mothers who joined the asi mailing list, meet up, with the name afb asi for baby lampung. the overall goal of the formation of aimi is to help increase the number of exclusive breastfeeding, because, in reality, many people consider breastfeeding to be natural, but in its implementation many difficulties, including lack of support, support systems that do not help mothers successfully breastfeed, especially there are still areas of poverty in which the number of exclusive breastfeeding is still low “.48 in addition to the breastfeeding support group in the form of a formal organization, in indonesia, there is a breastfeeding support group which is a community resource health effort (ukbm) called the mother support society group (kp-mothers breastfeeding), also known as breastfeeding support groups (kp -asi). the background of the formation of this group is an effort made to improve the practice of breastfeeding by conducting counselling and 47 aimi, (n.d.), organisasi, https://aimi-asi.org/organisasi, acessed on november 27, 2018. 48 interviews with head of the research division of aimi lampung region, on monday, february 25, 2019. https://aimi-asi.org/organisasi lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 21 counselling to mothers and families and new mothers who need to be encouraged to increase their confidence to want to breastfeed their babies. this needs to be supported by the community through the community support group of mothers (kp-mothers of breastfeeding).49 6. the role of father-based support groups regarding the role of fathers, various studies have proven that breastfeeding activities are getting smoother if mothers get support and assistance from their husbands as family heads and household partners.50 the @ayahasi movement which has been present since 2011, is one form of the public awareness campaign that husbands have a significant role in the breastfeeding process. the husband, as a spokesperson and protector consciously support his wife.51 until now, the @ayahasi movement inspired similar movements in more than ten cities in indonesia.52 “the background of the formation of @ayahasi is that we (the initiators/founders) understand that parenting is common property and breastfeeding is too important to only be taken care of by mothers, that’s why fathers should be involved in the breastfeeding process. we don’t want our friends to experience the mistakes we have experienced, so we want to share information about breastfeeding and breastfeeding.”53 in the form of formal, informal and ukbm organizations, breastfeeding support groups have an essential task, such as a liaison between a nursing mother and a health worker who helps her. breastfeeding support groups provide individual counselling services, information, support and opportunities for group discussions that make it easier for mothers to carry out breastfeeding activities and take care of their children. breastfeeding support groups are required to have a great commitment to building and increasing the confidence of mothers to decide to breastfeed their children.54 this support group does have a different role. however, it still complements the role given by health workers and professional medical personnel. the key to the best practice of breastfeeding is to provide continuous daily support in the home environment and the local community. two principles underlie the formation of a breastfeeding support group. the first is the emergence of awareness that breastfeeding is a positive decision concerning children’s health problems, and not just a lifestyle or trend. the last is, most of the problems faced by a nursing mother are not medical problems. hence the experienced nursing mothers can give assistance. the driving motor of a breastfeeding support group is a trained breastfeeding counsellor, who is also a mother who succeeds in breastfeeding her child and voluntarily donates her time to help other women succeed in breastfeeding their child. the counsellors are not in a position to make decisions for mothers to intervene. instead, they help them to gain and increase the self-confidence to make their own decision on determining and doing what the best for their children is. through breastfeeding support groups, women can further strengthen their motherhood.55 c. conclusion 49 kementerian kesehatan ri, panduan pembentukan dan pembinaan kelompok pendukung ibu menyusui (jakarta: kementerian kesehatan ri, 2012), 1. 50 mia sutanto, peran asosiasi masyarakat dalam mendukung ibu menyusui, (2010), 332-343, in ikatan dokter anak indonesia (idai), indonesia menyusui (jakarta: badan penerbit idai), 337. 51 aditia sudarto, et.al, catatan ayahasi : ditambah-tambahin (tangerang: buah hati, 2018), 13, 27. 52 ayahasi indonesia, (n.d.), tentang kami, https://ayahasi.org/tentang-kami/, acessed on march 9, 2019. 53 the results of an email interview with the admin @ayahasi, on saturday, march 9, 2019. 54 mia, op.cit., 333. 55 ibid., 341. https://ayahasi.org/tentang-kami/ institutional role in relation to legal policy towards of … lenny syahnimar 22 the institutional is considerably play the principal role in legal policy. they are maintaining and observing all structures and processes related to activities and efforts to realize the fulfilment of the need for legislation, moreover, as efforts to facilitate the fulfilment of the needs. the socio-legal function in fulfilling children’s rights to get exclusive breastfeeding is a preventing action from any issues that can jeopardize children’s safety and health through the provision of breastfeeding substitutes, encouraging increased exclusive breastfeeding and the provision of facilities in the private and public domain through providing support, place and time of breastfeeding anytime and anywhere. the exclusive breastfeeding program policy is a rule or legal norm based on provisions in law number 36 of 2009 about health. the underlying legal basis is article 28 b paragraph (2), article 28 h paragraph (1) and article 34 paragraph (3) of the 1945 constitution. because it is legally binding rules so that the legal subject must fulfil the rules in the policy (in this case is the mother, family, community, government or certain institutions), if the legal subject does not comply with the applicable rules, sanctions would be imposed. further, the exclusive breastfeeding program policy contains certain legal principles which are the soul in the formulation of the law to realize child welfare. forms of regulation in its policies with the issuance of government regulation number 33 of 2012 concerning exclusive breastfeeding, which is the implementation rule of article 129 of law number 36 of 2009. references a. journal a. t, marlia eka putri. “tinjauan atas perlindungan hukum terhadap hak menyusui anak selama waktu kerja di tempat kerja bagi pekerja perempuan”, fiat justisia: jurnal ilmu hukum 5, no. 3, 2011: 307-314. doi: 10.25041/fiatjustisia.v5no3.331. aridiyah, farah okky., rohmawati, ninna., ririanty, mury. “faktor-faktor yang mempengaruhi kejadian stunting pada anak balita di wilayah pedesaan dan perkotaan”, e-jurnal pustaka kesehatan 3, no. 1, 2015: 163-170. earlene, felishella., tandrajaya, jesslyn evelina. “sengketa penguasaan tanah antara warga kapuk poglar rt 07/rw 04 jakarta barat dengan polda metro jaya ditinjau dari perspektif hak asasi manusia”, jurnal cepalo 3, no. 2, 2019: 55-62, doi: 10.25041/cepalo.v3no2.1844. hambarrukmi, herning., sofiani, triana. “kebijakan pemberian asi eksklusif bagi pekerja perempuan di indonesia”, muwazah 8, no. 2, 2016: 268-286. hanafi, yusuf. “peningkatan kecerdasan anak melalui pemberian asi dalam al-qur’an”, mutawâtir: jurnal keilmuan tafsir hadis 2, no. 1, 2012: 27-45, doi: 10.15642/mutawatir.2012.2.1.27-45. haryanti, tuti., nurhayati. “penegakan hukum hak asasi manusia bagi anak penderita stunting”, jurnal ham 10, no. 2, 2019: 249-260, doi: 10.30641/ham.2019.10.249-260. isra, saldi. “peran mahkamah konstitusi dalam penguatan hak asasi manusia di indonesia”, jurnal konstitusi 11, no. 3, 2014: 409-427, doi: 10.31078/jk%25x. kadir, nurhira a. “menelusuri akar masalah rendahnya persentase pemberian asi eksklusif di indonesia”. jurnal al hikmah 15, no. 1, 2014: 106-118. kandioh, frangky benjamin., lumolos, johny., kaunang, markus. “eksistensi kelompokkelompok sosial dalam melestarikan 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komariyah. “faktor penghambat pemberian asi eksklusif pada ibu bekerja di kota blora”, jurnal kebidanan 8, no. 1, 2018: 10-21. doi: 10.31983/jkb.v8i1.3730. nurcahyo, edy., khuzaiyah, siti. “perlindungan hukum bayi melalui pemberian asi eksklusif dalam prespektif undang-undang nomor 36 tahun 2009 tentang kesehatan”, jurnal cendekia hukum 4, no. 1, 2018: 52-64, doi: 10.33760/jch.v4i1.59. rahadian, angga sisca. “pemenuhan hak asi eksklusif di kalangan ibu bekerja: peluang dan tantangan”, jurnal kependudukan indonesia 9, no. 2, 2014: 109-119, doi: 10.14203/jki.v9i2.40. sari, putri nilam. “meningkatkan kesuksesan program asi eksklusif pada ibu bekerja sebagai upaya pencapaian mdgs”, jurnal kesehatan masyarakat andalas 9, no. 2, 2015: 93-97, doi: 10.24893/jkma.v9i2.194. setiawan, eko., machmud, rizanda., masrul. “faktor-faktor yang berhubungan dengan kejadian stunting pada anak usia 24-59 bulan di wilayah kerja puskesmas andalas kecamatan padang timur kota padang tahun 2018”, jurnal kesehatan andalas 7, no. 2, 2018: 275284, doi: 10.25077/jka.v7i2.813. sumanto, dedi. “penegakan hukum dan pembangunan hukum di indonesia”, jurnal al-mizan 10, no. 1, 2014: 121-139. umboh, edelwina., wilar, rocky., mantik, max f. j. “pengetahuan ibu mengenai manfaat asi pada bayi”, jurnal e-biomedik (ebm) 1, no. 1, 2013: 210-214, doi: 10.35790/ebm.1.1.2013.1620. wulandari, sri. “peran badan perencanaan pembangunan daerah dalam pelaksanaan musrenbang di kota tarakan”, ejournal administrasi negara 1, no. 4, 2013: 1-11. b. book ali, zainuddin. metode penelitian hukum. jakarta: sinar grafika, 2016. asyihadie, zaeni and arief rahman. pengantar llmu hukum. jakarta: rajawali pers, 2013. badan penelitian dan pengembangan kesehatan. hasil utama riskesda tahun 2018. jakarta: kementerian kesehatan ri, 2018. badan penelitian dan pengembangan kesehatan. riskesdas 2013. jakarta: kementerian kesehatan ri, 2013. gultom, maidin. perlindungan hukum terhadap anak dan perempuan. bandung: refika aditama, 2013. ikatan dokter anak indonesia (idai). indonesia menyusui. jakarta: badan penerbit idai, 2010. kementerian kesehatan ri. kerangka kebijakan gerakan sadar gizi dalam rangka seribu hari pertama kehidupan (1000 hpk). jakarta: republik indonesia, 2012. https://doi.org/10.21067/jph.v2i1.1755 https://doi.org/10.31983/jkb.v8i1.3730 https://dx.doi.org/10.33760/jch.v4i1.59 https://doi.org/10.14203/jki.v9i2.40 https://doi.org/10.24893/jkma.v9i2.194 https://doi.org/10.25077/jka.v7i2.813 https://doi.org/10.35790/ebm.1.1.2013.1620 https://doi.org/10.35790/ebm.1.1.2013.1620 institutional role in relation to legal policy towards of … lenny syahnimar 24 kementerian kesehatan ri. panduan pembentukan dan pembinaan kelompok pendukung ibu menyusui. jakarta: kementerian kesehatan ri, 2012. kementerian kesehatan ri. pokok-pokok peraturan pemerintah no. 33 tahun 2012 tentang pemberian air susu ibu eksklusif. jakarta: kementerian kesehatan ri, 2012. monika, f.b. buku pintar asi dan menyusui. jakarta: noura books, 2014. pollard, maria. asi asuhan berbasis bukti. jakarta: egc, 2015. pusat kesehatan kerja depkes ri. (n.d.). kebijakan departemen kesehatan tentang peningkatan pemberian air susu ibu (asi) pekerja wanita,. jakarta: departemen kesehatan ri, 2010. roesli, utami. panduan inisiasi menyusu dini plus asi eksklusif. jakarta: pustaka bunda, 2012. sudarto, aditia. et.al. catatan ayah asi : ditambah-tambahin. tangerang: buah hati, 2018. tim nasional percepatan penanggulangan kemiskinan (tnp2k). 100 kabupaten/kota prioritas untuk intervensi anak kerdil (stunting) ringkasan. jakarta: tim nasional percepatan penanggulangan kemiskinan, 2017. trihono, et.al. pendek (stunting) di indonesia, masalah dan solusinya. jakarta: badan penelitian dan pengembangan kesehatan, 2015. c. regulation bandar lampung mayor circular no. 030/792.iv.41/2012. convention on the rights of the child 1989 government regulation number 33 of 2012. joint regulation of minister of women, minister of manpower and transmigration and the ministry of health no. 48 / men.pp / xii / 2008, per.27 / men / xii / 2008 and no. 1177 / menkes / pb / xii / 2008. lampung governor regulation number 10 of 2016. lampung province regional regulation number 17 of 2014. law number 35 of 2014 concerning amendment to law number 23 of 2002 concerning child protection. law number 36 of 2009 concerning healthy. law number 39 of 1999 concerning human rights. minister of health regulation number 15 of 2013. minister of health regulation number 15 of 2014. minister of health regulation number 23 of 2014. minister of health regulation number 25 of 2014. minister of health regulation number 39 of 2013. minister of women’s empowerment and child protection regulation number 03 of 2010. presidential decree no. 36 of 1990. the 1945 constitution of the unitary state of the republic of indonesia. d. internet https://aimi-asi.org/organisasi, accessed on november 27, 2018. https://ayahasi.org/tentang-kami/, acessed on march 9, 2019. https://aimi-asi.org/organisasi https://ayahasi.org/tentang-kami/ 25 protection of women’s reproductive health rights based on international law and regulation on laws in indonesia laila nurlatifah faculty of law, universitas lampung, indonesia, email: lailanurlatifah5@gmail.com submitted: january 8, 2020; reviewed: january 30, 2020; accepted: february 5, 2020 article info abstract keywords: protection, women’s, reproductive, health doi: 10.25041/lajil.v2i1.2030 women’s health is one of the 12 critical issues stipulated in the declaration and action plan of the fourth international conference on women in beijing in 1995 until now the issue of reproductive health in indonesia women are still the main study given the high mortality rate of women caused by disorders of the reproductive organs. this research focuses on the protection of women’s reproductive health rights under international law and legislation in indonesia. this type of research used in this study is normative legal research sourced from primary, secondary, and tertiary legal material whose data collection is carried out by library study techniques. the results of the study indicate two things: (1) protection of women’s reproductive health rights in international law is found in international covenant on civil and political rights; international covenant on economic, social and cultural rights; convention on the elimination of all forms of discrimination against women and the international labor organization (ilo convention). action plans for women’s reproductive health rights include the fourth world conference on women beijing; international conference on population and development cairo; sustainable development goals or sdgs. (2) protection of women’s reproductive health rights in legislation in indonesia is regulated in; the indonesia constitution; law number 39 year 2009; law number 39 year 1999; law no. 13/2003; law number 35 of 2014. national policies related to reproductive rights include government regulation number 61 of 2014; regulation of the minister of health of the republic of indonesia include lampung province regional regulation. volume 2 issue 1, 2020: pp. 25-40. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil https://doi.org/10.25041/lajil.v2i1.2030 protection of women's reproductive health rights based on international law laila nurlatifah 26 a. introduction health is a condition where every individual can carry out their activities properly without any constraints to fulfil their lives, both socially and economically. physical and spiritual health is the most valuable thing in life.1 the world health organization (who) defines health as a state of complete physical, mental and social well-being, and not just the absence of disease or reproductive health weaknesses handling reproductive processes, functions and systems at all stages of life.2 reproduction is a process of human life in producing offspring for the sake of its survival. the concept of reproduction is closely related to the future of mankind, which is determining the continuity and existence of humans on this earth. just imagine if humans no longer reproduce, then the future of humans will disappear because there is no new human being who will replace the old humans. the conception of the state requires human beings who then live in groups to become residents in a country. the population is one element of the formation of a country, other elements such as territory, sovereign government and recognition from other countries.3 this is stated in the 1933 montevideo convention on the rights and duties of the state. therefore, reproduction is a process to regenerate old human beings to replace them with new ones or in other meaning reproduction to maintain the existence of population in a country. the description above shows that the existence of the population in a country is closely related to reproductive health. reproductive health is an important component of health for men and women. but in this case, more emphasis on women because the state of the disease in women is more associated with the function and ability to reproduce and social pressure on women. women are the subject of several diseases to bodily functions because of male influence; the pattern of the disease is different from men due to genetic, hormonal, or lifestyle behaviours. diseases in the body system can interact with the state of the reproductive system or its function. this is due to several reasons. first, women have special health needs related to sexual and reproductive functions. secondly, women have a reproductive system that is easily injured to become dysfunctional or sick, whether it occurs before the reproductive system is functioning or after functioning. third, women can be affected by diseases of the same reproductive organs as men, but the pattern of the disease will be different from men because of the genetic structure of women, the hormonal environment, and lifestyle behaviours related to gender. diseases in other body systems can interact with the condition of the reproductive system and function fourth, because women are subject to social dysfunction, which can affect physical, mental or social health. men have a concern for reproductive health, but in their situation, men’s reproductive health and behaviour affect women’s reproductive health. the development of reproductive rights is based on the basic concept of thinking about reproductive rights which is a development on the concept of human rights. first, views based on the belief that every human being is born with individual rights that are not separated from it, and secondly views that emphasize the obligation of society and the state to guarantee not only freedom and opportunity for citizens, but also ensure that citizens are able to obtain, exercise freedom, and what is rightfully his. the emergence of the concept of women’s rights was initially interpreted with a mere logical background. namely, women’s rights are understood merely as a result of the recognition that women are also human. therefore, women should have the protection of human rights. this statement is confirmed through the convention on the elimination of all forms of discrimination against women (cedaw). cedaw is an international agreement to eliminate all forms of discrimination against women. this 1 anisa nurlaila sari, “legal analysis of dental service responsibilities according to the minister of health regulation no. 39 of 2014 concerning development of supervision and licensing of dental workers,” cepalo 2, no. 1 (2018): 21–32, 22, doi: 10.25041/cepalo.v2no1.1759. 2 http://www.who.int/topics/reproductive_health/en/, accessed on october 21, 2018 3 the montevideo convention on the rights and duties of the state 1933. http://www.who.int/topics/reproductive_health/en/ lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 27 convention defines the principles of women’s human rights as human rights, norms and standards of obligation, as well as the state’s responsibility in eliminating discrimination against women.4 one of the rights of women guaranteed by the state is the health and its relation to reproduction. women’s health is one of the 12 critical issues set out in the declaration and action plan of the iv world conference on women in beijing in 1995 until now the issue of women’s reproductive health remains a major study given the high mortality rate of women caused by disorders of the reproductive organs. reproductive health receives special attention from the issues raised in the international conference on population and development (international conference population development, icpd) in cairo, egypt in september of 1994, 184 countries gathered to plan an equivalence between human lives and resources available. for the first time, an international agreement on population-focused reproductive health and women’s rights as a central theme. at the conference agreed on a paradigm shift in the management of population and development issues from population control and fertility reduction approaches to approaches that focus on reproductive health and efforts to fulfil reproductive rights. the international labor organization (ilo) is a un body whose task is to advance opportunities for men and women to obtain decent and productive work in conditions that are independent, equal, safe, dignified. the ilo’s main objectives are to promote labour rights, expand decent work opportunities, enhance social protection, and strengthen dialogue in dealing with various issues related to the world of work. in addition, to ensure equality of opportunity and treatment for male and female workers as well as the need for pregnancy protection for female workers that is a joint responsibility of the government and the community.5 maternal mortality rate (mmr) in indonesia is still quite high compared to other countries in the asean region. the world health organization (who) defines maternal death as the death of a woman during pregnancy or 42 days after pregnancy is terminated, regardless of the duration and location of pregnancy from various consequences related to or exacerbated by the pregnancy or its treatment, however, does not result from an accident or accidental incident. maternal mortality rate (mmr) is still a serious health problem in developing countries. according to a report world health organization (who), in 2014, several countries had quite high mmr such as 179,000 sub-saharan africans, 69,000 south asians, and 16,000 southeast asians. the maternal mortality rate in southeast asian countries is indonesia 190 per 100,000 live births, vietnam 49 per 100,000 live births, thailand 26 per 100,000 live births, brunei 27 per 100,000 live births, and malaysia 29 per 100,000 live births.6 according to indonesian demographic and health survey data (idhs), the maternal mortality rate has decreased in the period 1994-2012, namely in 1994 at 390 per 100,000 live births, in 1997 at 334 per 100,000 live births, in 2002 at 307 per 100,000 births life, in 2007 was 228 per 100,000 live births. still, in 2012, the maternal mortality rate rose again to 359 per 100,000 live births. for imr it can be said that the decline on the track (continues to decline) and in the 2012 idhs shows 32 / 1,000 kh (2012 idhs). and in 2015, based on data from the 2015 intercensal population survey (supas) both mmr and imr showed a decrease (mmr 305 / 100,000 kh; imr 22.23 / 1000 kh). the high mmr and the slow decline in this number indicate that the health services for maternal and child health (mch) should be improved both in terms of service coverage and 4 https://www.komnasperempuan.go.id/reads-siaran-pers-komnas-perempuan-catatan-komnas-perempuan-33tahun-ratifikasi-cedaw-di-indonesia, accessed on february 28, 2019. 5 convention concerning revision of the maternity protection convention (revised), 1952 (note: date of entry into force: 07: 02: 2002). 6 http://www.who.int/, accessed on february 28, 2019. protection of women's reproductive health rights based on international law laila nurlatifah 28 quality. therefore, a clear regulation without overlapping and good implementation are needed for the sake of creating harmony in women’s reproductive health regulations. reproductive health is a very important aspect for the body, so many problems occur due to lack of attention to improving the quality of reproductive health in indonesia. maternal mortality does not only describe the health status of the mother itself but also reflects the overall status of the population and socio-economic conditions and is one indicator that is very sensitive in seeing the use and results for health services, especially mothers. 7 so in knowing the overall status of a country’s population and economic conditions whether or not it can be illustrated in how much the burden of maternal mortality in the country. the low reproductive health of women in indonesia compared to other asean countries is closely related to women’s reproductive rights that still overlap and the lack of serious attention. however, the reduction in maternal mortality in indonesia based on current data certainly requires hard work together to continue to reduce maternal and infant mortality rates in indonesia, even this is in line with the target of the 3rd goal set in sustainable development goals (sdgs). it is reducing the death ratio to less than 70 deaths per 100,000 births.8 one of the causes of aki is the low knowledge of women, especially pregnant women, which is caused by the lack of information received. other determinants that cause high aki are 4 too, i.e. too young, too often, too close and too old. an unwanted pregnancy at a young age can be very risky for death or can have a devastating effect on the baby it is carrying and reducing the death ratio to less than 70 deaths per 100,000 births. in addition to maternal mortality, the problem in indonesia regarding reproductive health is the prevalence of dangerous practices, namely early marriage and female circumcision, both of which have very dangerous impacts and threaten reproductive health in these women. before the petition, it was granted a request related to the age limit of marriage by the constitutional court on the judicial review of law no. 1 of 1974 concerning marriage, specifically regarding the age limit of marriage. indonesian law still applies 16 years for women and 19 years for men in article 7 of marriage law no. 1 of 1974 [10], while the minimum age for marriage based on international agreements is 18 years. article 1 of the convention on the rights of the child, in general, defines children as persons who have not reached the age of 18 years, but in that article also recognizes the possibility of differences or variations in determining the age limit of maturity in the statutory regulations of each participating country.9 early marriage will cause various impacts, one of which is related to reproductive health issues. if early marriage is carried out by someone who is still said to be a child or in other words, the age of early marriage, the perpetrators are still in the category called children. then there will be several possibilities that will affect reproductive health, especially women. for example is the physiological effects of miscarriage (abortion), labor premature, low birth weight and congenital abnormalities, easy to occur infections, anemia of pregnancy, and maternal death. various problems related to reproductive health remain a challenge for indonesia. this is because there are still legal tools (legislation) at the national level that are not yet optimal and conducive to adopting reproductive health in the new paradigm, particularly with regard to fulfilling the reproductive rights of each individual and implementing the applicable laws. giving special treatment to women for their reproductive health is the same as giving the best gift to the next generation. the privilege is not solely for women. women have a natural womb and starting from the womb. children can grow and develop. based on the background description of the problem above, the main issues to be discussed in this study are how the 7 asgar ali engineer, muslimah reformis perempuan pembeharu keagamaan (mizan pustaka: bandung, 2004), 266. 8 annual directorate of family health annual report 2016. 9 united nations convention on the rights of the child. lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 29 protection of women’s reproductive health rights under international law is? what is the protection of women’s reproductive health rights according to indonesian laws and regulations? this type of research used juridical-normative-comparative. legal research literature examines a problem based on legal norms contained in international regulations and legislation and comparing between two groups or more than a certain variable to produce a conclusion. the method in data collection used is the library study technique method, namely by studying the provisions of the legislation, international guidelines, books, documentation, journals, and accessing data on the internet related to issues within the scope of international law and the scope of national law. data analysis was carried out by outlining and giving the meaning of each data obtained into sentences that are detailed, orderly, effective, logical and not overlapping to facilitate the author in interpreting and analyzing the data which then concludes response to the problems contained in this paper. b. discussion 1. the protection of rights of women’s reproductive health according to the international law a. international covenant on civil rights and politics (international covenant on civil and political rights or the so-called iccpr) the author describes the relationship of reproductive rights with the convention of civil and political rights, or the international covenant on civil and political rights (iccpr) is a convention of civil and political rights, or the international covenant on civil and political rights (iccpr) is an agreement to protect and protect human rights, one of which is related to the right family life and family unity. the family is a unitary community group that basically provides an understanding of the equal rights and responsibilities of the family, recognition of the same rights between men and women. family as a place for someone’s first time to get to know, learn and understand their environment. the family as a place for the first time a person to know and learn provides an understanding of reproductive rights must be instilled early on as an effort to eliminate misconceptions such as the presumption of good nutrition only for boys. family as a place for the first time a person to learn is required to be able to provide a real understanding of the equality of men and women, equal rights and obligations, and oversee the growth and development of family members and ensure the fulfilment of rights and obligations including reproductive rights. the explanation is explained in article 23 paragraph (1, 2, 3 and 4). b. international covenant on economic, social and cultural rights international covenant on economic, social and cultural rights or called icescr) international covenant on economic, social and cultural rights international covenant on economic, social and cultural rights or icescr is part of the international human rights bill together with the universal declaration of human rights and the international covenant on civil and political rights. the icescr right is fundamental to enable people to live in dignity. this agreement covers important areas of public policy, such as the right to work; fair and just working conditions; social security; adequate living standards, including adequate food, clothing and housing; health; education.10 10 https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-untreaties/international-covenant-economic-social, accessed on february 28, 2019. http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-economic-social https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-economic-social protection of women's reproductive health rights based on international law laila nurlatifah 30 the icescr aims to ensure economic, social and cultural rights including the right to selfdetermination for all people (article 1); the right to non-discrimination based on race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or another status (article 2); equal rights between men and women to enjoy the rights in icescr (article 3); the right to work (articles 6-7); the right to form and join trade unions (article 8); the right to social security (article 9); protection and assistance to families (article 10); the right to an adequate standard of living (article 11); the right to health (article 12); the right to education (articles 13-14); and the right to cultural freedom (article 15). based on the above explanation, it can be concluded that icescr considers obligations in agreements that are directly and indirectly related to the right to health. in this case, the relationship between the implementation of human rights and the special right to health explained article 12 establishes “the right of everyone to enjoy the highest physical and mental standards that health can achieve”. arrangements carried out by states parties to agreements such as reduction of stillbirths and infant mortality; ensure the development of healthy children; improve the environment and industrial cleanliness; disease prevention, treatment and control; and access to medical care for all. then in article 12, the following is a brief summary regarding the right to health. in considering the normative content of article 12, the right to health does not mean the right to health, but rather takes into account the individual’s biological and socioeconomic prerequisites, and the resources available from a country. article 12 emphasizes that the right to health must be understood as the right to enjoy various facilities, goods, services and conditions to achieve the highest standards that health can achieve. article 12 underlines the right to health is an inclusive right that not only requires states parties to provide timely and appropriate health care, but also to overcome the underlying determinants of health, such as access to safe and drinking water and adequate sanitation, adequate supplies safe food, nutrition and housing, healthy work and health environmental conditions, and access to education related to health and information, including sexual and reproductive health.11 c. convention on the elimination of all forms of discrimination against women (cedaw) this convention encourages the adoption of national legislation that prohibits discrimination and adopts measures to change customary and cultural practices based on the inferiority or superiority of one sex or role stereotypes for women and men. in implementing human rights, women’s rights are the same as men’s rights, and these rights as agreed internationally are included in the cedaw convention, namely: rights in the family (marriage), politics, employment, education, health, citizenship, economic and social and equality before the law. various women’s rights have been accommodated in the cedaw convention (law no.7 of 1984), but in this case limited only to women’s rights to health, especially reproduction, women’s rights in marriage and how women’s rights are protected and based on human rights, all of these rights in order to achieve the goals, of course, it is also mandatory to empower them. how women can access factors of production, access resources, participate in the process of making policy decisions and plans and at the same time, be able to control and oversee the policy process. based on the explanation above, it can be drawn as a conclusion that cedaw protects women from all forms of discrimination and ill-treatment of the rights held by women. women’s human rights are part of human rights. women have special protection for their rights. one of the rights that must be protected is reproductive rights. reproductive rights are the most important part for women, and men have reproductive rights that must be protected. however, 11 https://www.who.int/hhr/economic_social_cultural.pdf, accessed on june 28, 2019. https://www.who.int/hhr/economic_social_cultural.pdf lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 31 in this case, reproductive rights are more focused on women. this is because women’s reproductive rights are special because only women experience menstruation, pregnancy, childbirth and breastfeeding. it is necessary to have special reproductive health protection for women because to guarantee the reproductive system and function of women. therefore, as the cedaw convention that supports the elimination of all forms of discrimination against women provide a special arrangement in the chapters related to women’s reproductive health rights namely in article 14 paragraph 2 and article 16 paragraph 1. d. the convention of the international labor organization (ilo) no. 183 years 2000 on pregnancy protection the international labor organization or ilo is a united nations (un) body that continues to strive to create opportunities for women and men to obtain decent and productive work freely, relatively, safely and with dignity. the main objectives of the ilo are to promote rights at work, encourage the creation of decent employment opportunities, enhance social protection and strengthen dialogue to address issues related to the world of work. the ilo is the global body responsible for developing and overseeing international labour standards. the four main ilo conventions that prohibit discrimination based on sex and promotion of equality are: equal wages convention, 1951 (no.100), discrimination (employment and occupation) convention, 1958 (no.111), workers with family responsibility convention, 1981 (no.156) and pregnancy protection convention, 2000 (no.183).12 the promotion of equality promoted by the ilo includes giving equal attention to the health sector where women are placed in a special arrangement to protect the reproductive rights of women workers. the ilo pays full attention to the protection of women’s reproductive rights as manifested in the pregnancy protection convention, 2000 (no. 183). there are ilo standard references for legal norms that affect the protection of the reproductive rights of women workers, namely: 1) protection of pregnancy; 2) workers with family responsibilities; 3) certain rules related to night work, underground and part-time work and other health issues. based on the explanation of the articles above, it can be concluded that the material coverage of the pregnancy protection convention, 2000 (no.183) (revised), includes: 1) covers four main elements of pregnancy protection: maternity leave; financial and health benefits; health protection; breastfeeding. 2) extends the period of leave from 12 weeks to 14 weeks, with compulsory leave six weeks after the birth of the child, during which the mother is not permitted to work. 3) issue a policy of the right to additional leave if you experience illness, complications or risk of these complications that endanger the pregnancy. 4) providing financial benefits at the level where women can maintain themselves and their children in a healthy condition and with a decent standard of living. the financial benefits should be as received by most working women. 5) providing medical benefits including before birth, at birth and after birth and hospital treatment if needed. 6) recognize the right to health protection to ensure that there is no obligation to work due to being pregnant or undergoing female care because it will harm the health of the mother and child or it is known in advance that the work will pose a risk to the health of the mother or child. 7) give women an hour or more of daily rest to breastfeed or reduce work hours. 12 desy churul aini, desia rakhma banjarani, “perlindungan pekerja perempuan berdasarkan konvensi ilo (international labour organization) dan implementasinya di indonesia”, prosiding seminar nasional membangun budaya adil gender dan ramah anak, bandar lampung, badan penerbitan fakultas hukum universitas lampung, (2017): 83-94, 85. protection of women's reproductive health rights based on international law laila nurlatifah 32 2. action plan for the women’s reproductive health rights a. international conference on population and development or icpd international conference on population and development (international conference on population and development), cairo in 1994. the important thing from the cairo icpd in 1994 was the agreed paradigm shift in managing population problems into an approach focused on reproductive health and efforts to fulfil men’s reproductive rights. and women based on gender equality and justice. the scope of reproductive health services according to the 1994 international conference on population and development (icpd) in cairo consisted of maternal and child health, family planning, prevention and treatment of sexually transmitted infections including the human immunodeficiency virus (hiv) and acquired immun deficiency syndrome (aids), adolescent reproductive health, prevention and management of complications of abortion, prevention and treatment of infertility, reproductive health of the elderly, early detection of reproductive tract cancers and other reproductive health such as sexual violence, female circumcision and so on.13 the author provides his view regarding reproductive health rights that the milestone of the development of reproductive health begins with the international conference on population and development (international conference on population and development), which was held in cairo in 1994. at that time, 179 countries signed the agreement of the population and development conference (international conference on pupulation and development, icpd). these countries agreed on a paradigm shift in managing population and development issues, which initially focused on population control and fertility reduction, then prioritizing health services for the fulfilment of individual reproductive rights, both men and women throughout their life cycle, this was explained in the scope of reproduction health services according to the international conference on population and development (icpd). the cairo conference contains an understanding of reproductive rights and reproductive health in a broad sense because of the reproductive and reproductive health rights which include among others: a 1) state of complete physical, mental and social well 2) being. satisfying and safe sex life. 3) men and women’s rights to obtain information and have access to safe, effective and affordable family planning methods. 4) the right to obtain appropriate health care services, which enable women to survive pregnancy and childbirth. 5) provide opportunities for couples to have healthy babies. 6) methods, techniques, and services that support reproductive health 7) sexually transmitted diseases. b. fourth world conference on women (fwcw) fourth world conference on women (fwcw) results of the world iv conference on women, beijing, 1995. the 1995 fourth world conference on women in beijing marked a significant turning point for the global agenda for gender equality. the beijing declaration and platform for action were adopted unanimously by 189 countries. the beijing declaration and platform for action is an agenda for women’s empowerment and are considered as the main global policy documents on gender equality. this platform for action focuses on 12 critical areas, namely: 13 https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusat-nationalregulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi, accessed on june 28, 2019. https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusat-national-regulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusat-national-regulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 33 1) women and poverty; 2) women and education; 3) women and health; 4) violence against women; 5) women and armed conflict; 6) women and economy; 7) women in power and decision making; 8) institutional mechanisms for advancing women; 9) human rights for women; 10) women and mass media; 11) women and the environment; 12) girl. the beijing conference builds on political agreements reached at the previous three global conferences on women and consolidates five decades of legal progress aimed at securing women’s equality with men in law and in practice.14 the author explains that the fourth world conference on women (fwcw) in beijing is a significant turning point in the global agenda for gender equality. the platform for action provides a focus of attention on women and health as 12 critical focus areas. women’s health is still a problem that must be prioritized and addressed, especially related to reproductive health. this is because the maternal mortality rate in some developing countries such as indonesia is still high. according to a report, world health organization (who) maternal deaths generally occur due to complications during and after pregnancy.15 for this reason, paying attention to supporting efforts to uphold women and health, especially reproductive health rights, is very important to prevent complications during and after pregnancy to reduce maternal mortality. c. sustainable development goals (sdgs) sustainable development goals (sdgs) is a global action plan agreed by world leaders, including indonesia, to end poverty, reduce inequality and protect the environment. the sdgs contain 17 goals and 169 targets that are expected to be achieved by 2030.16 countries jointly declare intergovernmental these goals in the un resolution issued on october 21, 2015, as a joint development ambition until 2030. in this case women’s health is one of the objectives of the sdgs are set in the third and fifth goals. the author describes the fifth goal as follows: the fifth goal is achieving gender equality and empowering all women and girls. strategy: 1) increasing understanding and commitment on the importance of integrating gender perspectives in various stages, processes and areas of development, at the national and regional levels. 2) implementing gender-responsive planning and budgeting (pprg) in various fields of development, especially in education, health, employment, politics, economics, and law. analysis: the fifth goal of sdgs marriages performed by women before the age of 18 or in this case called the practice of early marriage will affect the conditions of women’s reproductive readiness. the condition of immature reproduction will endanger the woman herself or when the woman conceives will be at high risk of congenital disabilities and will even have an impact on the baby’s death due to immature or prepared reproduction of women who marry before the age of 18 years. in addition, the assumption that women are weak people makes women often get gender injustice treatment such as subordination, marginalization to violence experienced 14 http://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-on-women, accessed on may 5, 2019. 15 http://www.who.int/mediacentre/factsheets/fs348, accessed on june 30, 2019. 16 https://www.sdg2030indonesia.org/#modalicondefinition, accessed on june 30, 2019. http://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-on-women http://www.who.int/mediacentre/factsheets/fs348 protection of women's reproductive health rights based on international law laila nurlatifah 34 by women both physically and sexually. such treatment is very detrimental to women when recalling the existence of gender equality. there should be no mistreatment experienced by women especially women have a uterus that must be adequately guarded and so as much as possible to avoid physical and sexual violence. therefore, the fifth objective of the sdgs is concrete evidence of support and efforts to create gender equality and empower all women and girls and eliminate discrimination and harmful practices such as early marriage that will have an impact on reproduction for women. 3. protection of women’s reproductive health rights according to laws in indonesia the indonesian government has sought to change the concepts and strategies of existing reproductive health and family planning services. in accordance with the conditions and situation in indonesia, five priorities in the field of reproductive health were chosen, which included four essences and five comprehensively. the four components of essential reproductive health services (pkre) are (1) maternal and child health (mch), (2) family planning (kb), (3) youth reproductive health (krr), (4) prevention and prevention of stis including hiv / aids. if pkre is added by the fifth component, namely elderly reproductive health services, then these services become comprehensive reproductive health services (pkrk). in addition, someone has the right to be free from the possibility of contracting sexually transmitted infections that can affect reproductive function. the implementation of reproductive health services by the indonesian ministry of health is carried out integrally prioritizing the four components of reproductive health which are a major problem in indonesia, called the package for reproductive health services (pkre), namely: a. maternal and newborn health. b. family planning. c. adolescent reproductive health. d. prevention and treatment of reproductive tract infections, including hiv/aids. whereas comprehensive reproductive health services (pkrk) is consists of pkre plus reproductive health at an advanced age. women’s reproductive rights, it can be understood in advance that in islam, women’s reproductive rights are nothing but rights which must be guaranteed due to their reproductive function. in relation to the regulation of reproductive health in indonesia, a number of legal umbrella can be found that regulate both the form of laws and national policies. the author describes the laws and regulations relating to women’s reproductive health rights, including: a. the 1945 constitution of the republic of indonesia, article 28 a, article 28 h paragraph 1, and article 34 paragraph (3). b. law number 36 of 2009 concerning health, articles 71-78. c. law of the republic of indonesia number 39 of 1999 concerning human rights, article 45 and article 49. d. law of the republic of indonesia number 13 of 2003 concerning manpower, article 76, articles 81-83. e. law number 35 of 2014 concerning amendments to law number 23 of 2002 concerning child protection, article 4 and article 8. f. government regulation number 61 of 2014 concerning reproductive health g. regulation of the minister of health of the republic of indonesia number 43 of 2016 concerning minimum service standards in the field health. h. lampung province regional regulation number 17 of 2014 concerning the exclusive provision of breast milk. 4. policy on women’s reproductive health rights in indonesia lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 35 maternal mortality rate (mmr) is still a serious health problem in developing countries. according to a report world health organization (who), in 2014, several countries had quite high mmr such as 179,000 sub-saharan africans, 69,000 south asians, and 16,000 southeast asians. the maternal mortality rate in southeast asian countries is indonesia 190 per 100,000 live births, vietnam 49 per 100,000 live births, thailand 26 per 100,000 live births, brunei 27 per 100,000 live births, and malaysia 29 per 100,000 live births.17 in 2015, based on data from the 2015 intercensal population survey (supas) both mmr and imr showed a decrease (mmr 305/100,000 kh; imr 22.23/1000 kh). based on these data, especially in southeast asia, indonesia’s maternal mortality rate appears to be in the highest position compared to other countries. then in indonesia alone, the maternal mortality rate has not so significantly decreased. this situation is a reality that must be accepted by indonesia as a developing country with a large population. maternal mortality is a serious problem. maternal mortality rates illustrate the health conditions of women in a country. in addition, the maternal mortality rate also illustrates the economic conditions and various health problems, especially the reproductive health of a mother. the maternal mortality rate is the adverse impact of suboptimal health services and implementation of the implementation of legislation related to health and reproductive rights. government regulation number 61 of 2014 concerning reproductive health has not been optimal in the application of all aspects of reproductive health. the high maternal mortality rate in indonesia is due to lack of knowledge of the importance of reproductive health rights as well as other access to reproductive health services. the goals of reproductive health and rights are as follows:18 a. to ensure comprehensive, factual and varied information about reproductive health care services available, affordable and acceptable. b. to enable and support voluntary and responsible decisions regarding pregnancy and their family planning methods and other methods of choice in terms of fertility arrangements that are not against the law and have information, education and ways to obtain them. c. to meet the needs of reproductive health that change throughout the life cycle and do so in a manner that is sensitive to the diversity of local community conditions. the author analyzes from article 71 of law 36 of 2009 concerning health that every person has the right to have children, including the right not to have children, the right to get pregnant, the right not to get pregnant, and the right to determine the number of children desired. the understanding of reproductive health includes the right of everyone to obtain safe, effective and affordable reproductive health services. law number 17 of 2007 concerning the national longterm development plan (rpjpn) 2005-2025 states that in order to realize the quality and competitive human resources (hr), health together with education and increasing family purchasing power / the community is the three main pillars to improve the quality of human resources and the human development index (hdi) of indonesia. health development is an investment in improving the quality of human resources. health development carried out on an ongoing basis in the last three decades has significantly improved the degree of public health. the degree of public health has shown improvement as can be seen from the infant mortality rate, maternal mortality rate and life expectancy. quality human resources are the subject and at the same time the object of development. although the degree of public health can be improved, the health status in indonesia is still inadequate.19 17 zainal fatoni, yuly astuti, sari seftiani, augustina situmorang, widayatun, dan sri sunarti purwaningsih, “implementasi kebijakan kesehatan reproduksi di indonesia: sebelum dan sesudah reformasi”, jurnal kependudukan indonesia 10, no. 1 (2015): 65-74, 65. 18 mariana amiruddin, “women's health and reproductive rights”, women's journal foundation and the japan foundation indonesia, 2003. 19 departemen kesehatan ri, rencana pembangunan jangka panjang bidang kesehatan 2005-2025 (jakarta: departemen kesehatan ri, 2009), 48. protection of women's reproductive health rights based on international law laila nurlatifah 36 according to the author’s analysis based on health regulations at this time it is not enough, both the number, type, and effectiveness. so that there is confusion in the implementation of activities in the field, including legal protection for the implementation of health services. health information systems in this era are experiencing obstacles. the data and information obtained are still fragmented and do not fully describe health problems. health development planning has not been as expected because there are still disparities in the ability of interregional planning planners. nationally, the interrelation of the planning flow is not optimal, especially related to the relationship between long-term health development planning (rpjpn), medium-term (rpjmn and strategic plan or strategic plan) and annual planning (renja kl or work plan of ministries and / or institutions) and rpjmd, renstrada and renja skpd (regional work unit). then the author provides an explanation that health science and technology have developed rapidly but cannot be utilized optimally because of the low quality of human resources. the government has not yet been able to carry out effective, efficient and quality health development in accordance with the principles of good governance. the ideal foundation of national development is pancasila, and the constitutional foundation is the 1945 constitution. health development is an integral part of national development. therefore, health development is also held based on pancasila and the 1945 constitution. health as a human right is expressly mandated by the 1945 constitution, in which it is stated that everyone has the right to live in physical and spiritual prosperity, to live, and to have a good and healthy living environment and the right to obtain health services. internationally, the 1948 constitution of the world health organization (who) also states that “health is a fundamental right”, which contains an obligation to heal the sick and maintain and improve the health. this underlies the idea that healthy as a human right and healthy as an investment. health development is prioritized on the empowerment and independence of the community, as well as health efforts, especially promotive and preventive efforts, which are supported by the development and empowerment of human health resources. in providing health services promotive, preventive, curative and rehabilitative, this is explained in article 1 of government regulation number 61 of 2014. then, with the enactment of the 2015-2019 rpjmn, the ministry of health prepares a 2015-2019 strategic plan. the ministry of health strategic plan is an indicative planning document containing health development programs that will be implemented by the ministry of health and becomes a reference in the preparation of annual planning. the formulation of the ministry of health strategic plan is carried out through approaches: technocratic, political, participatory, top-down, and bottom-up. health development in the 2015-2019 period is the healthy indonesia program to improve the health status and nutritional status of the community through health efforts and community empowerment supported by financial protection and health service delivery. the main targets of the 2015-2019 rpjmn are: (1) improving the health and nutrition status of mothers and children; (2) improvement of disease control; (3) increasing access and quality of basic and referral health services especially in remote, underdeveloped and border areas; (4) increasing coverage of universal health services through the indonesia healthy card and the quality of the management of the national social security system (sjsn) health, (5) meeting the needs of health workers, drugs and vaccines; and (6) increasing the responsiveness of the health system. in this case the strategic plan which is a basic form in the implementation of health development places its primary attention on efforts to improve the health status and nutritional status of the community through health efforts and community empowerment supported by financial protection and health service delivery. in the 2020-2024 rpjm, the welfare of the community continues to increase. it is shown by remembering the quality and competitive human resources supported by increasing the degree of health and nutritional status of the community, increasing optimal growth and lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 37 development, child welfare and protection, the realization of gender equality, and the survival of conditions and population grows in balance. according to the authors, the goals of sustainable development goals or sdgs are in line with the 2015-2019 rpjmn. it is closely related to the goals of sustainable development goals evenor sdgs such as efforts to reduce maternal mortality, eliminate violence against women and the welfare of all ages in the health and other fields in order to benefit the people and the welfare of the indonesian people in particular. sustainable development goals or sdgs will be implemented not only on a national scale but at the regional level and with the hope of being able to work together in national development to achieve the goals of the sdgs and national development. goal 5 (five) sdgs. this goal talks about ending violence and discrimination against women and ensuring they have equal opportunities in all aspects of life. local governments can act as examples of gender equality and women’s empowerment through the provision of services that do not discriminate against their population and fair work practices. local governments are at the forefront in identifying and dealing with violence and behaviours that endanger women. lampung province does not yet have a policy related to regional legal products or regional regulations that specifically regulate reproductive health. but in this case, as we know of law number 23 of 2014 concerning regional government, health is one of six affairs concurrent that is mandatory and is related to basic services. governmental affairs are gradually handed over from the central government to regional governments (pemda), and this is in accordance with article 18 paragraph (6) of the amendment to the 1945 constitution which states that regional governments carry out the broadest possible autonomy. efforts to support reproductive health in lampung province local government gave its policy by stipulating lampung provincial regulation no. 17 of 2014 concerning exclusive breastfeeding. the existence of lampung province regional regulation no. 17 of 2014 concerning exclusive breastfeeding is an effort to protect, support and promote exclusive breastfeeding. it needs to be done to improve support and the government, local government, health service facilities and health workers, the community and family, so that mothers can provide exclusive breastfeeding to infants. various major issues or problems in exclusive breastfeeding in lampung province include that there are still many parties who do not realize the importance of exclusive breastfeeding, there are still many parties who do not realize the importance of early breastfeeding initiation, some of these obstacles are caused by mothers not confident that they are able to breastfeed properly so as to meet all the nutritional needs of infants. this is partly due to the lack of knowledge of the mother, lack of family support, lack of support from health workers and lack of community support about the benefits of exclusive breastfeeding. the content contained in the us is the most complete and most suitable food for babies that babies need for their growth and development. through breastfeeding, babies will also get immunity from their mothers. exclusive breastfeeding can prevent death in infants. besides being important for babies, exclusive breastfeeding is also beneficial for mothers. breastfeeding can help the mother to accelerate the return of the uterus to its original form. breastfeeding can also spoil pregnancy. the most important thing about breastfeeding is to increase the closeness of the inner relationship and affection between mother and baby. based on counselling data conducted by aimi lampung to breastfeeding mothers who have breastfeeding constraints various obstacles are felt by breastfeeding mothers in lampung province including the lack of information and education received by lactating mothers, lack of support from the family when lactating mothers face breastfeeding constraints, and the difficulty of finding health facilities (health facilities) and health workers (health workers) that support the process of breastfeeding in the early days of birth. most of the clients who consulted with aimi lampung stated that they did not do imd (early breastfeeding initiation) and room protection of women's reproductive health rights based on international law laila nurlatifah 38 in immediately after delivery even though the baby was stable or there were no medical indications.20 based on the explanation above, it can be concluded that the regional regulation of lampung province no. 17 of 2014 concerning exclusive breastfeeding is a form of commitment of the regional government in supporting lampung province to be a province that is friendly to women and children. in addition, the lampung province regional regulation no. 17 of 2014 concerning exclusive breastfeeding provides evidence that the provincial government of lampung has given its concern for the health of women and children. lampung province regional regulation number 17 of 2014 concerning exclusive breastfeeding is a form of support that every child born in lampung province must grow and develop properly without constraints related to nutrition. as we all know the various benefits of exclusive breastfeeding, among others, have a large contribution to the growth and development and endurance of children, children who are given exclusive breastfeeding will grow and develop optimally and not get sick easily. breastfeeding has a series of benefits for babies and mothers. it is even a universal solution that can improve the health and well-being of mothers and children in various parts of the world. breastfeeding is one solution to overcome the problem of hunger and malnutrition and all its forms. besides, breastfeeding ensures the availability of intake for babies, especially in crisis situations. nutrition, food availability, and poverty reduction are key to achieving the sustainable development goals (sdg) set by the united nations.21 c. conclusion protection of women’s reproductive health rights in international law is found in; article 23 paragraphs (1,2,3 and 4) of the international(covenant on civil and political rights international covenant on civil and political rights or referred to as the iccpr); article 7, article 10 paragraph 2, article 11 paragraph 1, article 12 paragraph 1 and 2 of the international(covenant on economic, social and cultural rights international covenant on economic, social and cultural rights or called icescr); article 14 paragraph 2, article 16 paragraph 1 cedaw (convention on the elimination of all forms of discrimination against women convention on the elimination of all forms of discrimination against women)and international labor organization (ilo convention) number 183 of 2000 concerning protection of pregnancy. action plans for women’s reproductive health rights include beijing’s fourth world conference on women (fwcw); international conference on population and development (icpd) cairo; the fifth goal in the sustainable development goals or sdgs. protection of women’s reproductive health rights in legislation in indonesia is regulated in; the 1945 constitution of the republic of indonesia; article 71-78 of republic of indonesia law number 39 year 2009 concerning health; article 45 and article 49 of law number 39 year 1999 concerning human rights; article 76, articles 81-83 of the republic of indonesia law no. 13/2003 concerning manpower; article 4 and article 8 of the law of the republic of indonesia number 35 of 2014 concerning child protection. national policies related to reproductive rights include government regulation number 61 of 2014 concerning reproductive health; regulation of the minister of health of the republic of indonesia number 43 of 2016 concerning minimum service standards in the field of health. regional policies related to reproductive health include lampung province regional regulation number 17 of 2014 concerning the provision of exclusive breast milk. references 20 results interview with ms. upi fitriyanti, chairperson of the association of indonesian breastfeeding mothers (aimi) lampung branch, the date of the interview was taken on may 15, 2019. 21 upi fitriyanti, “menyusui sebagai fondasi kehidupan”, lampung post, edition tuesday, august 7, 2018. http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm lampung journal of international law (lajil) p-issn: 2656-6532 volume 2 issue 1, 2020 e-issn: 2723-2603 39 a. journal and article aini, desy churul., banjarani, desia rakhma. “perlindungan pekerja perempuan berdasarkan konvensi ilo (international labour organization) dan implementasinya di indonesia”, prosiding seminar nasional membangun budaya adil gender dan ramah anak, bandar lampung, badan penerbitan fakultas hukum universitas lampung, (2017): 83-94. amiruddin, mariana. “women’s health and reproductive rights”, women’s journal foundation and the japan foundation indonesia, 2003. fatoni, zainal., et.al. “implementasi kebijakan kesehatan reproduksi di indonesia: sebelum dan sesudah reformasi”, jurnal kependudukan indonesia 10, no. 1, 2015: 65-74. fitriyanti, upi. “menyusui sebagai fondasi kehidupan”, lampung post, edition tuesday, august 7, 2018. sari, anisa nurlaila. “legal analysis of dental service responsibilities according to the minister of health regulation no. 39 of 2014 concerning development of supervision and licensing of dental workers,” cepalo 2, no. 1, 2018: 21–32, doi: 10.25041/cepalo.v2no1.1759. b. book marcella jr, albert j., stucki, carol. privacy handbook: guidelines, exposures, policy implementation, and international issue, new jersey: john wiley & sons, 2003. sitompul, asri. hukum internet, pengenalan mengenai masalah hukum di cyberspace, bandung: citra aditya bakti, 2001. wisnubroto, al., widiartana, g. pembaharuan hukum acara pidana, bandung: citra aditya bakti, 2005. c. regulation convention montenvideo 1933 on the rights and duties of states universal. convention on the elimination of all forms of discrimination against women). convention on the rights of the child or the united nations convention on the rights of the child. declaration on human rights rnanusia (udhr) or the universal declaration of human rights 1948. government regulation number 61 of 2014 concerning reproductive health regulation of the minister of health of the republic of indonesia number 43 of 2016 concerning minimum service standards in the field of health. iccpr(internationalcovenant on civil and political rights). icescr (internationalcovenant on economic, social and cultural rights). indonesia constitutional 1945, lampung province regional regulation number 17 of 2014 concerning exclusive breastfeeding. law no. 1 of 1974 concerning marriage law no. 13 of 2003 concerning manpower. law no. 23 of 2002 concerning protection child. law no. 24 of 2000 concerning international treaties law no. 36 of 2009 concerning health law no. 39 of 1999 concerning human rights law no. 7 of 1984 concerning ratification of the convention on the elimination of all forms of discrimination against women and the cairo document. protection of women's reproductive health rights based on international law laila nurlatifah 40 law number 7 of 1984 concerning ratification of the un convention on the elimination of all forms of discrimination against women (abbreviated as the women’s convention). ri ministry of health. long-term development plan in the health sector 2005-2025. jakarta: ministry of health ri, 2009. vienna convention of 1969 on international agreements. d. internet http://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-onwomen, accessed on june 28, 2019. http://www.who.int/mediacentre/factsheets/fs348, accessed on june 28, 2019. http://www.who.int/topics/reproductive_health/en/, accessed on october 21, 2018. https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promotingun-treaties/international-covenant-economic-social, accessed on october 21, 2018. https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusatnational-regulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi, accessed on june 28, 2019. https://www.komnasperempuan.go.id/reads-siaran-pers-komnas-perempuan-catatan-komnasperempuan-33-tahun-ratifikasi-cedaw-di-indonesia, accessed on june 28, 2019. https://www.sdg2030indonesia.org/#modalicondefinition, accessed on june 28, 2019. https://www.who.int/hhr/economic_social_cultural.pdf, accessed on june 28, 2019. http://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-on-women http://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-on-women http://www.who.int/mediacentre/factsheets/fs348 http://www.who.int/topics/reproductive_health/en/ https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-economic-social https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-economic-social https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusat-national-regulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi https://www.kebijakanaidsindonesia.net/id/dokumen-kebijakan/download/17-peraturan-pusat-national-regulation/968-pp-ri-no-61-tahun-2014-tentang-kesehatan-reproduksi https://www.komnasperempuan.go.id/reads-siaran-pers-komnas-perempuanhttps://www.sdg2030indonesia.org/#modalicondefinition https://www.who.int/hhr/economic_social_cultural.pdf,%20accessed%20on%20june%2028,%202019 49 review of the internet blocking case in papua in cyber law perspective melvin elvino putra satya wacana christian university putra.mlvn2708@gmail.com submitted: feb 10, 2022; reviewed: mar 16, 2022; accepted: jun 25, 2022 article info abstract keywords: cyber law, human right, internet. doi: 10.25041/lajil.v4i1.2524 the internet has become an essential part of modern life, increasing the efficiency of everything. it should be no surprise that internet abuse can lead to crimes that harm everyone. as a result, there is a need for legal safeguards known as cyber law, which intersects with human rights. the case of internet blocking in papua, in which the government blocked or slowed internet connections in papua, is the subject of this article because it raises many issues in the fields of human rights and cyber law, which, on the human rights side, is regulated in the 1945 constitution, which states that everyone has the right to benefit from technology. in this case, the government cannot meet the aspect of human rights. however, in cyber law, this is intended as a limitation to reduce a crime on social media or the internet that causes chaos. as a result, this paper will elaborate on the papua case from the standpoint of cyber law. the administrative court's decision used a normative legal approach and an objective case approach to investigate this phenomenon experimentally. the study then employs a qualitative method with literature and empirical approach, obtaining data through legal analysis and social phenomena that occur in society. although further investigations are needed, the present study contributes to a better understanding of the case that occurred in papua related to the government's blocking or disconnection of the internet. it was not a violation of the law because the government at the time made good decisions for the entire community's benefit, ensuring that everyone was safe from cybercrime or false news, which has the potential to sever indonesia's unity. a. introduction technological developments in indonesia from year to year continue to grow so that at this time, indonesia has touched the technological trend of the industrial revolution 4.0. the internet is one of the fastest technological developments in indonesia. in the current era, all people use the internet to connect, and even today, all public facilities use the internet for convenience for volume 3 issue 1, 2021: pp. 49-54. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil strengthening global governance: indonesia’s court and the … ary apriyanto 50 their consumers. behind the positive side of the internet, there is a negative side, one of which is a crime in the scope of internet/electronic technology, commonly called cyber crime. the settlement will contact cyber law, which defines all the principles, norms, or rules of institutions, institutions, and processes that regulate virtual activities carried out using information technology that utilizes multimedia content and telecommunications infrastructure. the advancement of information, communication, and technology are one of the main factors that drive economic development and growth1. there was a case in 2019 where the government blocked or slowed internet connections in papua. the government intends to impose these restrictions to combat hoaxes, hate speech, and provocations in papua. this caused chaos in papua among students and the general public, who were outraged by the central government's decision to block internet access in the country. this case raises many problems in the field of human rights and cyber law, which on the human rights side, of course, is regulated in the 1945 constitution that everyone has the right to benefit from technology. in this case, the government cannot fulfill the aspect of human rights. however, for the field of cyber law, this aims as a limitation to minimize a crime on social media or the internet, causing chaos. therefore, this paper will be explained further from the point of view of cyber law regarding the case that occurred in papua. the author uses a normative legal approach and an objective case approach, not forgetting that this research uses a qualitative method with literature and empirical approach—the data obtained through the analysis of laws and social phenomena that occur in the community. b. discussion the author of this article will discuss the problems in papua related to blocking the internet network by the government, which aims to reduce the existence of hoax news and can lead to criminal acts on social media. this case occurred due to acts of racism against 41 papuan students in surabaya and caused riots in several areas of papua. the racism and student arrests triggered a wave of rolling demonstrations in jayapura, manokwari, sorong, fakfak, and west papua. the central government considers this in the name of national security and emergencies. the government's steps are also reasons not to let hoax news run rampant from the cyber law side. however, the ptun judge gave another opinion in his consideration in the decision stating that "if there is such a situation, the government should handle hoaxes, not turn off the internet which harms the rights of others in large numbers." the statement given by a judge in the decision of this case is exciting, and the author will provide another opinion in this case in the field of cyber law. cyber law is a form of legal protection in the field of technology against the actions of cybercrime. the blocking or disconnection of the internet is carried out to avoid all crimes in the world of technology. in this case, the government has done what it should as a country that protects human rights. it was tried through litigation, namely the state administrative court. in its decision, the government was deemed to have violated the law related to internet blocking in papua. the consideration given by the judge referred to the authority of the government, which has no right to revoke the internet in a region. however, it has a different opinion by the constitutional court in which the government's actions are constitutional and by the principles of the rule of law. 1. application of cyber law in indonesia the internet is one of the technologies increasing in indonesia, making it easy and efficient for human life. there is a weakness behind the advantages of the internet itself, namely crime on 1 tasya safiranita ramli et al., “prinsip-prinsip cyber law pada media over the top e-commerce berdasarkan transformasi digital di indonesia,” jurnal legislasi indonesia 16, no. 3 (2019): 392–98. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 51 the internet or commonly called cybercrime. in the current digital era, the internet can be a source of offenses committed by irresponsible people, such as a case in indonesia in 2001 when a crime occurred by using the internet to order goods from abroad using a forged credit card.2 where there is a crime, there is a law that applies to be juxtaposed with a legal norm so that society can be protected. in other words, there is a need for countermeasures against cybercrime in the form of law enforcement (cyber law) as a bulwark against cybercrime. one of the movements of the government to reduce the existence of cybercrime is the ite law. the scope of cyber law in indonesia is public law: jurisdiction, ethics of online activities, consumer protection, anti-monopoly, fair competition, taxation, regulatory body, data protection, and cyber crimes. private law: intellectual property rights, ecommerce, cyber contract, domain name, insurance3. with the rapid growth of the internet in indonesia, cyber crimes remain the primary focus for law enforcement or the government to reduce crime on the internet. a. cyber law with human rights human rights (ham) are natural rights inherent in every human being since birth which means that god almighty gives them to his creation. for this reason, nobody or anyone can rob or revoke the right of the gift from god almighty. human rights do not need to be regulated in a national legal system. still, most human life systems are secular and positivistic, so human rights require a juridical basis to hold human life more orderly4. human rights related to technology are regulated in the indonesian constitution, namely the 1945 constitution of the republic of indonesia in article 28c paragraph (1), which states that everyone has the right to develop themselves through fulfilling their basic needs, has the right to education and benefits from science. and technology, arts, and culture, to improve the quality of life and for the welfare of humanity. the guarantees for the protection of human rights built by the government for the enforcement of human rights are 1) the human rights commission (komnas ham); 2) human rights courts 3) establishment of a truth and reconciliation commission as an alternative settlement of human rights violations outside the human rights court, and 4) ratify various international conventions on human rights.5 the government must ensure that its people are fulfilled in their human rights. not only in normative provisions but other matters related to human rights must be fulfilled. apart from the provisions related to human rights, the government continues to work for the good of all people to be protected from all crimes such as cyber crime. 2. internet blocking case in papua b. analysis of administrative court decision number 230/g/tf/2019/ptun-jkt the defendants in this dispute are the minister of communication and information and president joko widodo. they gave his power to the attorney general of the republic of indonesia, namely s.t. burhanuddin. meanwhile, the plaintiffs from various legal entities will sue the central government regarding this issue. the plaintiff gave the main points of the case submitted in the trial related to the internet blocking dispute in papua with several legal grounds, namely: a) article 4 paragraph (1) of law number 40 of 1999 concerning the press, which stipulates that " independence is guaranteed as 2 lita sari marita, “cyber crime dan penerapan cyber law dalam pemberantasan cyber law di indonesia,” no. 18 (n.d.). 3 darmawan napitupulu, “kajian peran cyber law dalam memperkuat keamanan sistem informasi nasional,” teknologi informasi dan komunikasi, 2017, 100–113. 4 bambang sutiyoso, “konsepsi hak asasi manusia dan implementasinya di indonesia,” unisia 25, no. 44 (2002): 84–94, https://doi.org/10.20885/unisia.vol25.iss44.art7. 5 besar besar, “pelaksanaan dan penegakkan hak asasi manusia dan demokrasi di indonesia,” humaniora 2, no. 1 (2011): 201, https://doi.org/10.21512/humaniora.v2i1.2971. strengthening global governance: indonesia’s court and the … ary apriyanto 52 a human right of citizens.", and article 4 paragraph (3) which reads "to guarantee the freedom of the press, the national press has the right to seek, obtain and disseminate ideas and information," because it hinders and interferes with the activities of journalists who are doing media coverage in papua, west papua, and the region. so that the recipients of the information are limited to get the information; b) article 28 j of the 1945 constitution of the republic of indonesia in conjunction with article 73 of law number 39 of 1999 concerning human rights which regulates restrictions and prohibitions that can only be limited by and based on law. other. and some others. plaintiff stated that the government had no right to cut off the internet network in papua and violated a legal provision and human rights regulated in the constitution. however, the government denied this in the decision by explaining that article 40 of the ite law that the government protects the public interest of all kinds disturbance as a result of misuse of information. meanwhile, the panel of judges in their decision stated that based on article 6 paragraphs (1) and (2) letter e of the government administration law, government officials have the right to use the authority to make decisions and actions, including using discretion according to their objectives. the assembly cited article 22 paragraph (2) of the government administration law, which states that every use of the control of government officials is aimed at: a. smoothing the administration of government; b. fill legal voids; c. provide legal certainty; and d. overcoming government stagnation in certain circumstances for the benefit and public interest. "the four discretionary objectives according to the assembly are cumulative, not alternative." decision no. 230/g/t.f./2019/ptun-jkt finally granted the claim from the plaintiffs and stated that the defendant's exception was not accepted. the government's actions related to blocking the internet in papua and west papua is an act that violates the law. if viewed from the government in its exception in the lawsuit, it is explained that there is a provision that the government has the authority to do this. still, it turns out that the panel of judges has reversed what defendant has done as a violation of the law. it can be concluded that according to article 28 j of the 1945 constitution and article 40 of the ite law if there is a sudden and urgent situation, the government has the right to block the internet in papua because this is for the good of the entire nation, especially papua as the main sector in this regard. when a government is judged guilty, it is not the right thing because behind the existence of human rights that must be protected, but what the government does is also included in the protection of human rights. this is supported by the decision of the constitutional court related to the judicial review of the government's authority to decide to block internet content in article 40 of the ite law. the verdict rejected the applicant's application in its entirety on the consideration that blocking the internet by the government is a constitutional act. the constitutional court considers that the blocking and termination of the internet carried out by the government as the context of this country must be present to protect the public interest from all forms of interference so that this does not conflict with the rule of law principles6. in malaysia, there is a commission known as the communications and multimedia commission (mcmc) which acts as the main internet regulatory commission for malaysia. the mcmc itself has a legal mandate to protect and ensure that laws and regulations relating to communications and multimedia are enforced and implemented. the mandate includes the issuance, revocation and amendment of telecommunications licenses while striving to achieve the government's national cyber policy objectives7. likewise, in bangladesh, at the beginning 6 “mahkamah konstitusi nyatakan pasal pemblokiran internet konstitusional nasional tempo.co,” n.d. 7 m z islam et al., “ensuring safe cyberspace for children: an analysis of the legal implications of social media usage in malaysia and singapore,” iium law journal 28, no. 8th international conference on law and society (iclas) (2020): 395–413. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 53 of 2015, several social networking applications were blocked by the government of bangladesh, causing severe disruption for four days. at that time, the reason was that it was suspected that terrorists used social media platforms such as facebook, whatsapp, line, and so on for a movement against government opposition activists. the government of bangladesh has also done this in 2012 and 2013 that residents were blocked on youtube and facebook8. thus, it can be interpreted that the government's treatment of the people in papua is an act that is intended to protect the entire community in the hope that it will avoid difficult issues or things. some countries such as malaysia and bangladesh apply the same thing to their people to temporarily block the internet for their nation's good and interests. c. conclusion cyber crime or crime in the world of technology has emerged after the digital era, which is growing. to avoid such a crime, it is necessary to have cyber law that regulates to ensure legal certainty rather than cybercrimes committed by irresponsible people. cyber law also intersects with human rights, where everyone has the right to obtain technological facilities, and the government must protect these human rights. with the example of the case that occurred in papua related to the blocking or disconnection of the internet carried out by the government, it was not a violation of the law because the government at that time made good decisions for the good of the whole community so that all of them were protected from cybercrime or false news. it has the potential to divide the unity of indonesia. reference besar, besar. “pelaksanaan dan penegakkan hak asasi manusia dan demokrasi di indonesia.” humaniora 2, no. 1 (2011): 201. https://doi.org/10.21512/humaniora.v2i1.2971. islam, m z, s zulhuda, nhmb afandi, and m a shafy. “ensuring safe cyberspace for children: an analysis of the legal implications of social media usage in malaysia and singapore.” iium law journal 28, no. 8th international conference on law and society (iclas) (2020): 395–413. islam, md zahidul, and rabeya anzum. “internet governance: present situation of bangladesh and malaysia.” international journal of recent technology and engineering 7, no. 5 (2019): 176–80. lita sari marita. “cyber crime dan penerapan cyber law dalam pemberantasan cyber law di indonesia,” no. 18 (n.d.). “mahkamah konstitusi nyatakan pasal pemblokiran internet konstitusional nasional tempo.co,” n.d. napitupulu, darmawan. “kajian peran cyber law dalam memperkuat keamanan sistem informasi nasional.” teknologi informasi dan komunikasi, 2017, 100–113. ramli, tasya safiranita, ahmad m ramli, danrivanto budhijanto, rika ratna permata, huala adolf, eddy damian, and miiranda risang ayu palar. “prinsip-prinsip cyber law pada media over the top e-commerce berdasarkan transformasi digital di indonesia.” jurnal legislasi indonesia 16, no. 3 (2019): 392–98. sutiyoso, bambang. “konsepsi hak asasi manusia dan implementasinya di indonesia.” unisia 25, no. 44 (2002): 84–94. https://doi.org/10.20885/unisia.vol25.iss44.art7. 8 md zahidul islam and rabeya anzum, “internet governance: present situation of bangladesh and malaysia,” international journal of recent technology and engineering 7, no. 5 (2019): 176–80. strengthening global governance: indonesia’s court and the … ary apriyanto 54 a. introduction b. discussion 1. application of cyber law in indonesia a. cyber law with human rights 2. internet blocking case in papua b. analysis of administrative court decision number 230/g/tf/2019/ptun-jkt c. conclusion 121 indigenous peoples’ rights over natural resources: an analysis of host communities rights in nigeria amah emmanuel ibiam1, hemen philip faga2 1faculty of law, ebonyi state university, abakaliki, nigeria e-mail: amahibiam@gmail.com 2faculty of law, ebonyi state university, abakaliki, nigeria e-mail: hemenfaga@gmail.com submitted: july 12, 2021; reviewed: july 30, 2021; accepted: august 7, 2021 article info abstract keywords: natural resources, ownership, international law, indigenous peoples. doi: 10.25041/lajil.v3i2.2402 many states are engulfed in crises over natural resources in the form of claims and counterclaims over who should exercise legal authority over the resources located within the state territory. in nigeria, the agitation over control of natural resources has led to militancy and rebellion against the federal government and multinational oil companies. the debate on who should control and manage natural oil resources in nigeria exists at the local community level, the federating states level, and the federal government level. this paper x-rayed the varying contentions of these agitations from an international law perspective. it adopted the doctrinal method to explore international human rights instruments and other legal and non-legal sources to realize the result and arrive at persuasive conclusions. the paper concluded that although international law guarantees states’ exercise of sovereign rights over their natural resources, it safeguards the right of indigenous peoples and communities to manage the natural resources found within their ancestral lands to deepen their economic and social development. it also concluded that the niger delta indigenous peoples and oil-producing communities are entitled to exercise some measure of control and management of the processes of exploitation of the natural resources found within their lands. the paper calls on the nigerian government to fasttrack legal and policy reforms to resource rights to indigenous host communities of natural resources in nigeria. a. introduction international law refers to sets of principles and conventions regulating the conduct of nations among themselves, some of which are enforceable while others are persuasive. these enforceable international legal instruments do not bind only states but may be extended to specific regional and international agencies, associations, and even individuals.1 numerous conventions and treaties confer rights on individual members of the human community, whichever states they may belong to or are situated. recent developments in international 1 icj, mavrommatis palestine concessions (1924); icj, advisory opinion: interpretation of the agreement of 25 march 1951 between the who and egypt (1980). volume 3 issue 2, july-december 2021: pp. 121-136. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:amahibiam@gmail.com mailto:hemenfaga@gmail.com indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 122 human rights law have moved toward granting individuals and some groups of people fundamental rights against the state. for example, the international covenant on civil and political rights, 1966 (iccpr), the international covenant on economic, social, and cultural rights 1966 (icescr) and the african charter on human and peoples rights 1981 (achpr),2 all contain provisions guaranteeing some measure of rights to indigenous communities over natural resources in their lands. others include the un declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities; the un general assembly resolution (unga) 1803 of 1962; the un resolution 3281 (xxiv) of 1974 the indigenous and tribal population convention 1957 (convention 107) of the ilo; the indigenous and tribal peoples convention of 1989 (convention 169) of the ilo and the un declaration on the rights of indigenous peoples 2007. on the other hand, the nigerian federation's ownership and management of natural resources are governed by its constitution. however, the constitution of the federal republic of nigeria allocates the right of ownership and control of every natural resource located in any sovereign territory of nigeria on the central government known as the federal government.3 this constitutional position on natural resources has not been accepted by the natural resources hosting communities and composite states of nigeria;4 this has given rise to what is today known as resource control agitation.5 heated debates, suspicion, and militancy, have 2the international covenant on civil and political rights 1966, the international covenant on economic, social and cultural rights 1966, the african charter on human and peoples rights 1981 respectively. 3 for example, section 44 (3) of the 1999 constitution provides: “notwithstanding the preceding provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in nigeria or in, under or upon the territorial waters and the exclusive economic zone for nigeria shall vest in the government of the federation and shall be managed in such manner as may be prescribed by the national assembly"; section 4 (2) and part 1 of the second schedule to the cfrn, the petroleum act 1969 cap. p.10 laws of the federation of nigeria 2010, s. 3(1) mineral act cap.m12, laws of the federation of nigeria, 2010, section 2 of the petroleum industry law of 2012 provides: “the entire property and control of all petroleum in, under or upon any lands within nigeria, its territorial waters or which forms part of its continental shelf and the exclusive economic zone, is vested in the government of the federation”; supreme court, attorney general abia state v. attorney-general federation (2002); emmanuel ibiam amah, “an appraisal of the rights of the niger-delta peoples over natural resources under the african charter on human and peoples’ rights,” african journal online (ajol) 11, no. 2 (2020), https://www.ajol.info/index.php/naujilj/article/view/200378; an appraisal of the rights of the niger-delta peoples over natural resources under the african charter on human and peoples’ rights (naujilj) 11 (2), 84. it is worth mentioning that this has not been the state of affairs before the enactment of petroleum. the 1963 republican constitution entrusted exclusive legislative competence over mineral resources to the federal government but did not vest ownership in them on her; consequently, the federal government was required by section 140 (1) of the 1963 constitution to pay to each region; (a) sum equal to 50 per cent of proceeds of any royalty received by the federation in respect of any minerals extracted from that region and, (b) any mining rents derived by the federation during that year from that region; amah emmanuel ibiam, “an examination of the contradictions in the ownership of land and natural resources in nigerian federation,” journal of law, policy and globalization 63 (2017), https://www.iiste.org/journals/index.php/jlpg/article/view/38051; it has been opined that the vesting of petroleum in the federal government was a tactical means of thwarting the designs of the secessionist eastern region of nigeria; amechi okolo, “the political economy of the nigeria oil sector and the civil war,” quarterly journal of administration 15, no. 1–2 (1981): 107–26. 4 victor attah, “understanding resource control” (kaduna, 2004), https://dawodu.com/attah1.htm; emmanuel shebbs and ray njoku, “resource control in nigeria issues of politics, conflict and legality as challenge to development of the niger delta region,” journal of good governance and sustainable development in africa (jggsda) 3, no. 3 (2016), ttp://rcmss.com/2017/jggsda/resource-control-in-nigeriaissues-of-politicsconflict-and-legality-as-challenge-to-development-of-the-niger-delta-region.pdf. 5 john adewale abolurin, democratisation, conflict management and the amnesty question in nigeria (ibadan: john archers, 2010); rhuks ako, “resource control in the niger delta: conceptual issues and legal realities,” e-international relations, 2012, https://www.e-ir.info/2012/05/25/resource-control-in-the-niger-delta-conceptualissues-and-legal-realities/; anna dunin, “battling the ‘resource curse’ in the niger-delta” (nigeria, 2011), https://reliefweb.int/report/nigeria/battling-resource-curse-niger-delta; amah, “an appraisal of the rights of the niger-delta peoples over natural resources under the african charter on human and peoples’ rights.” lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 123 accompanied this agitation in the form of destruction of oil facilities, abduction and kidnapping of expatriate oil workers and continued unrest and retaliation by military troops of the federal government. host oil communities claim that resources are exploited from their land without commensurate compensation for the environmental consequences of the exploration and exploitation. they also claim loss of livelihood from the destruction of their farmlands and fishing games due to oil spillage, the consequent ruin of their local economy, and the proliferation of poverty. they claim unemployment and political alienation as a result of their minority status. these claims have given rise to debates on the right of the natural resources host communities over the resources found in their lands.6 it is pertinent to state that international law does not recommend any system of government for states. however, it does regulate the conduct of a state about its citizen’s rights accruable by international conventions, customary international law, and opinions of international disputes settlement bodies. therefore, the issues this paper intends to discuss are to find out the extent to which a community of people is collectively entitled to internationally guaranteed rights over natural resources as against the state in which they belong and whether these rights inure to the natural resources host communities in nigeria. b. discussion 1. international legal regime and natural resources ownership ownership of resources has been given international recognition in a vast set of international legal regimes. one notable international legal instrument on natural resources ownership is the united nations general assembly (unga) resolution 1803 of 1962 resolution on permanent sovereignty over natural resources (rpsnr)7 which justifies states appropriation of natural resources by way of nationalization of foreign-owned oil industries.8 6 sylvester chibueze izah, “ecosystem of the niger delta region of nigeria: potentials and threats,” biodiversity international journal 2, no. 4 (2018): 338–45, https://doi.org/10.15406/bij.2018.02.00084; victor a. akujuru and les ruddock, “incorporation of socio-cultural values in damage assessment valuations of contaminated lands in the niger delta,” land 3, no. 3 (2014): 675–92, https://doi.org/10.3390/land3030675; amah, “an appraisal of the rights of the niger-delta peoples over natural resources under the african charter on human and peoples’ rights”; abolurin, democratisation, conflict management and the amnesty question in nigeria; ako, “resource control in the niger delta: conceptual issues and legal realities”; oludotun adetunberu and akeem o. bello, “agitations in the niger delta region, oil politics and the clamours for restructuring in nigeria,” international journal of peace and conflict studies (ijpcs) 5, no. 1 (2018): 115–25, http://www.rcmss.com/index.php/ijpcs; www.academix.ng; dunin, “battling the ‘resource curse’ in the niger-delta.” 7 the united nations general assembly (unga) resolution 1803 of 1962 in article 1 provides that; “the right of the peoples and nations to the permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people of the state concerned"; un, “united nations emergency force,” un resolution, 1962, http://www.geocities.ws/savepalestinenow/unresolutions/studyguide/sgunresgasum1960.html. 8 the struggle for sovereignty over natural resources arguably began in the 19th century when political independence started to develop in some regions, including latin america. following world war ii in 1945, the movement gained impetus as postcolonial developing country regimes, particularly in africa and asia started to claim the right to sovereignty over natural resources. the period was a catalyst for many developing countries (particularly those in latin america) to contest the validity of concession agreements that their governments had entered into with foreign investors or were imposed during colonial times for exploration and exploitation of natural resources. one of the significant points of contention was that these concession agreements tended to be largely one-sided, and they strongly favored the interests of foreign investors; mats ingulstad and lucas lixinski, “raw materials, race, and legal regimes: the development of the principle of permanent sovereignty over natural resources in the americas,” world history bulletin 29, no. 1 (2013): 34; ricardo pereira, “the exploration and exploitation of energy resources in international law,” in environmental and energy law, ed. karen makuch and ricardo pereira (london: wiley-blackwell, 2012), 199–224; yinka omorogbe and peter oniemola, “property rights in oil and gas under domanial regimes,” in property and the law in energy and indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 124 the desire to guarantee the newly decolonized nations sovereignty and less-developed third world nations to ensure that non-self-governing nations benefited from their naturally endowed resources occasioned the passage of the un general assembly's resolution (rpsnr) on december 14, 1962. the rpsnr recognized the right of the host state to nationalize and expropriate the property of foreign investor companies, provided that appropriate compensation is paid. it secured each country's right to choose its economic system and exercise sovereignty over its natural resources. it is believed that the permanent sovereignty principle has attained the status of a peremptory norm such that it is binding on all states.9 another international legal regime on natural resources governance is the rio declaration on environment and development of 1992, which also recognized nationalization as an integral part of the sovereignty of states. it further recognized in its article 2 thereof the rights of states to exploit their resources following their environmental and developmental policies. it acknowledged that the charter of the united nations recognizes these rights and constitutes core principles of international law. other conventions on human rights that touch on natural resources include; the iccpr and icescr,10 which provide for the right of selfdetermination11 and the rights of peoples over their natural resources; the right of the peoples to an adequate standard of living, food, clothing, housing and continuous improvement of their living conditions;12 the right of the peoples to environmental and industrial hygiene13 and the peoples' inherent right to the full enjoyment and free utilization of their natural wealth and resources.14 a further guarantee of enforceable rights is found in the two ilo conventions.15 natural resources, ed. aileen mcharg et al. (oxford: oxford university press, 2010), https://doi.org/10.1093/acprof:oso/9780199579853.003.0006. 9 nico schrijver, sovereignty over natural resources: balancing rights and duties (cambridge: cambridge university press, 1997), https://doi.org/10.1017/cbo9780511560118; article 53 of the vienna convention on the law of treaties contains the following definition of the concept of peremptory norms: "for the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”; vienna convention on the law of treaties, opened for signature may 23 1969, 115 unts 331 (entered into force january 27 1980); kamal hossain and subrata roy chowdhury, permanent sovereignty over natural resources in international law: principle and practice (london: francis pinter, 1984); ian brownlie, principles of public international law, 7th ed. (oxford: oxford university press, 2008); leo-felix lee, “sovereignty over, ownership of and access to natural resources,” environmental laws and their enforcement 2 (2009), https://www.eolss.net/samplechapters/c04/e4-21-05.pdf. 10 article 2 of the rio declaration provides inter-alia; “states have…the sovereign right to exploit their resources according to their own environmental and developmental policies…”; unep, “rio declaration on environment and development” (rio de janeiro, 1992), https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/a_conf.1 51_26_vol.i_declaration.pdf. 11 e.g. article 1(2) of the icescr states, "all peoples may, for their ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. in no case may a people be deprived of its means of subsistence". 12 article 11 of the icescr 13 article 12 of the icescr 14 article 25. in the fisheries jurisdiction cases (1974), the icj recognizes that under customary international law, as it had crystallized after the 1958 and 1960 conferences on the law of the sea, a coastal state has the right to establish a 12-mile exclusive fishery zone and preferential rights of fishing in adjacent waters ‘to the extent of the particular dependence of its people upon the fisheries in the seas around its coasts for their livelihood and economic development; icj, fisheries jurisdiction (united kingdom v. iceland) (1974). 15 the indigenous and tribal population convention 1957 (no. 107) of the international labour organization (ilo) and the indigenous and tribal peoples convention 1989 (convention 169) of the international labour organization (ilo); the indigenous and tribal population convention 1957 (no. 107) of the international labour organization (ilo) applies to the 'indigenous population'. the rights guaranteed are; protection and systematic integration with the dominant political population, protection of the institutions, property, and means of livelihood lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 125 the un declaration on the rights of indigenous peoples (undrip) 2007 though not legally binding, has demonstrated a significant understanding of the right to self-determination in a manner that could help strengthen the natural resources right of indigenous peoples.16 however, it is noteworthy that both the proponents of state ownership and management of natural resources and those for the host indigenous community’s ownership and/or management of natural resources rely on these varying provisions of international law in their respective claims over natural resources. for example, proponents of states ownership and management of natural resources based their claim on state sovereignty, a principle that has become a peremptory norm of international law.17 proponents of community ownership and control also argue that the principle of state sovereignty inures to the state citizens as against the state. they also based their contention on numerous human rights instruments that have accorded rights over natural resources to indigenous communities hosting these resources. this paper shall therefore consider the various provisions of international law in support of these conflicting and opposing claims to arrive at a common and better understanding of the position of international law on issues of natural resources ownership and management. 2. state sovereignty versus the right of 'peoples' over natural resources sovereignty is the ability of a state to decide for itself unrestrained by external influences. it connotes the right of a state to make its decisions about its affairs, including the management of its resources unencumbered by external interference.18 the unreserved legal right and authority to own and control the management and development of her natural resources can be inferred from customary international law, declarations and treaties. therefore, the trend has shifted away from investor authority over resources to the authority of the host state. before the 1960s, the trend was for foreign investors to engage in petroleum extraction to carry out their activities in unrestrained host states because they were believed to possess ownership rights over the resources. however, the decolonization process and political independence embolden newly independent states to demand their economic independence and sovereignty rights, culminating in un intervention.19 thus, on december 14, 1962, the general assembly adopted the united nations resolution 1803 of 1962 rpsnr.20 which acknowledged the inherent rights of states to their natural resources. it further recognized the rights of host states to take over the management of their resources and determine and adopt whatever management system best suits them for the interest of their citizens. further, compensation should be regulated by the law of the host states.21 by this resolution, the newly of the population, guarantee of the rights of this population to their traditional lands and even provisions of additional land territories where their traditional lands are not sufficient for them. 16 dorothee cambou, “the undrip and the legal significance of the right of indigenous peoples to selfdetermination: a human rights approach with a multidimensional perspective,” the international journal of human rights 23, no. 1–2 (2019): 34–50, https://doi.org/10.1080/13642987.2019.1585345. 17 ibiam, “an examination of the contradictions in the ownership of land and natural resources in nigerian federation.” 18 lee, “sovereignty over, ownership of and access to natural resources.” 19 latin america made initial attempts to change the international legal status quo. this was through the insertion of clauses that placed the contracts within the ambit of national and not international law. this came to be known as "calvo clause" after the jurist who was its prominent exponent; richard kiy and anne mcenany, “housing and real estate trends among americans retiring in mexico’s coastal communities,” 2010, https://icfdn.org/wpcontent/uploads/2015/11/retiring_responsibly_housing_english.pdf. 20 un, “permanent sovereignty over natural resources general assembly resolution 1803 (xvii)” (new york, 1962), https://legal.un.org/avl/ha/ga_1803/ga_1803.html. the above statements were reinforced in 1966 by resolution number 2158(xxi), which provided that the general assembly should, amongst other things; because foreign capital, whether public or private, is forthcoming at the request of the developing countries. it can play an important role in as much as it supplements their effort to exploit and develop their natural resources. this provides that there is government supervision over the activity of foreign capital to ensure that it is used in the interest of national development, recognizing the rights of all countries to indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 126 independent state scored a huge political victory, as they gained the right of control and ownership of natural resources following the principle of state sovereignty.22 however, this victory is challenged by recent arguments regarding the rights of communities over resources located in their territory of origin as against the state. the question is, does a group of people have the right against the state over natural resources found in their community? in recent years, the notion that the right of permanent sovereignty over natural resources is exclusive to the state (national government) and a matter of domestic affairs, such that peoples of natural resources producing territories may not legally claim some additional benefit from the resources produced from their land has undergone a deadly attack.23 the understanding has grown to the notion that the right to permanent sovereignty is accruable to “people” or “indigenous people”.24 it has been accepted that the right to permanent sovereignty does not grant immunity to the national government on their responsibility under international law. it neither operates to absorb them of their obligation under human rights norms and conventions, especially in natural resources.25 a good number of conventions on human rights grant some fundamental rights in connection to natural resources on states citizens and communities are produced. for example, article 1 of both the international covenant on civil and political rights (iccpr) and the international covenant on economic, social and cultural rights (icescr) provides for the right of self-determination of peoples over their natural resources. article 47 of the iccpr states that “nothing in the present covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources”, while article 1 (2) of the international covenant on economic, social, and cultural rights (icescr) states; “all peoples may, for their ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of secure their share in the administration of enterprises that are wholly or partly operated by foreign capital and have a greater share in the advantages from that place on an equitable basis, with due regard to development needs and objectives of that people concerned. considers that when foreign investors exploit the natural resources of the developing countries, the latter should undertake proper and accelerated training of national personnel at all levels and in all fields connected with such exploitation. 22 on december 12, 1974, the general assembly adopted resolution no 3281 (xxiv) entitled `charter of economic rights and duties of state". this resolution which inter-alia stated; (a) every state shall freely exercise full permanent sovereignty including possession, use and dispose over all of its wealth, natural resources and economic activities; (b) each state has the right to nationalize, expropriate or transfer ownership of foreign property in which case appropriate compensation shall be paid by the state adopting such measure taking into account any relevant laws and regulations and all circumstances that the state considers pertinent. in any case, where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing states and by its tribunals, unless it is freely and mutually agreed by all states concerned that other peaceful means be sought based on the sovereignty of states and following the principle of the choice of means. 23 schrijver, sovereignty over natural resources: balancing rights and duties; anita rønne, “public and private rights to natural resources and differences in their protection?,” in property and the law in energy and natural resources, ed. aileen mcharg et al. (oxford: oxford university press, 2010), https://doi.org/10.1093/acprof:oso/9780199579853.003.0003; lila barrera-hernández, “sovereignty over natural resources under examination: the inter-american system for human rights and national resources allocation,” annual survey of international & comparative law 12, no. 1 (2006): 43, https://core.ac.uk/download/pdf/233103609.pdf. 24 rpsnr, un doc. a/res/3281 (xxix) annex at 2(1); article 1 of the iccpr and article 1 of the icescr, which recognizes the peoples' right to self-determination. 25 protocol to the convention for the protection of hrs and fundamental freedom, ets no. 9, as amended by protocol no. 11 to the convention for the protection of human rights and fundamental freedoms, ets no. 155, november 1 1998) article 1 herein recognize the right to property as a fundamental human right; "every natural or legal person is entitled to the peaceful enjoyment of their (or their) possessions. no one shall be deprived of his or her possessions except in the public interest and subject to the condition provided for by the law and by the general principles of international law”; un, “permanent sovereignty over natural resources general assembly resolution 1803 (xvii).” lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 127 international economic cooperation, based upon the principle of mutual benefit and international law. in no case may a person be deprived of their means of subsistence”.26 the implication of permanent sovereignty over natural resources to “peoples” of a state is that it could arguably form the basis of a challenge to a government’s decision to authorize multinational companies to operate in the natural resources sector in a state’s territory against the will of the citizens in general or the natural resources host community in particular. secondly, governments would also be bound to utilize natural resources to benefit the whole population. hence, the realization of the right to permanent sovereignty as belonging also to peoples add new relevancy to the “rpsnr” in the post-colonial period, directing sovereign states to use resources for ‘the wellbeing of their peoples’.27 the principle of permanent sovereignty has evolved to a peremptory norm of international law. it is said to be sharing the same status with the prohibition of the use of force.28 therefore, it is binding on states and will amount to illegality for any state to violate the principle therein. a. the indigenous peoples right to their natural resources under international conventions a good deal of conventions and treaties protecting the right of indigenous peoples and communities are available and supportive of the assertion that international law favors peoples’ ownership and management of natural resources found in their territory. much of the international protection guaranteed to indigenous people can be found in three documents; 1) the indigenous and tribal population convention 1957 (convention 107) of the international labour organization. 2) the indigenous and tribal peoples convention 1989(convention 169) of the international labour organization (ilo) 3) the united nations declaration on the right of indigenous people. who are indigenous peoples under these international conventions and declarations? martinez cobo made the most acceptable definition of indigenous peoples. according to cobo;29 “indigenous communities, peoples, and nations have a historical continuity with preinvasion and pre-colonial societies that developed on their territories or parts of them. they form as present non-dominant sectors of society. they are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples, following their cultural pattern, social institutions, and legal systems.” 26 this recognizes the right of people to self-determination. (icescr, opened for signature december 16 1966, 993 unts 3 (entered into force) 27 jane a. hofbauer, “the principle of permanent sovereignty over natural resources and its modern implications” (university of iceland, 2009), https://skemman.is/bitstream/1946/4602/1/jane_hofbauer.pdf; schrijver, sovereignty over natural resources: balancing rights and duties; rønne, “public and private rights to natural resources and differences in their protection?” 28 article 53 of the vienna convention on the law of treaties contains the following definition of the concept of peremptory norms: "for the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”; vienna convention on the law of treaties, opened for signature may 23 1969, 115 unts 331 (entered into force january 27 1980); ricardo pereira and orla gough, “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law,” melbourne journal of international law 14, no. 2 (2013): 451–95; hossain and chowdhury, permanent sovereignty over natural resources in international law: principle and practice; brownlie, principles of public international law. 29 martínez cobo, “study on the problem of discrimination against indigenous populations,” 1983, http://www.un.org/esa/socdev/unpfii/documents/mcs_xxi_xxii_e.pdf. indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 128 according to the 2003 report of the african commission’s working group of experts on indigenous population/communities,30 the expression “indigenous people” refers to those communities in africa: 1) whose cultures and ways of life differ considerably from the dominant society, and whose cultures are under threat, in some cases to the point of extinction; 2) the survival of their particular way of life depends on access and rights to their traditional lands and natural resources thereon; 3) who suffer from discrimination as they are regarded as less developed and less advanced than other more dominant sectors of society; 4) who live in inaccessible regions, often geographically isolated, and suffer from various forms of marginalization, both politically and socially; 5) who are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority; and, 6) who identify themselves as indigenous from this definition, it can safely be deduced that “indigenous people” and “peoples” could also be “minorities”.31 the un declaration guarantees “indigenous people” or indigenous communities to maintain their unique cultures and traditions. it further guarantees the right of indigenous peoples to freely determine their political status and the right to just and fair compensations in cases of expropriation of their lands. indigenous peoples have been referred to as tribes, aborigines, first people, first nations, ethnic groups, adivasi, janajati, etc.32 the phrase has also been used to refer to occupational groups with ancestral ties like hunter-gatherers, nomads, peasants, hill people, etc.33 therefore “people” or indigenous peoples or tribal peoples under the undrip, the ilo conventions and other international legal instruments could rightly apply to indigenous or ancestral communities of the niger-delta of nigeria who share common ancestral ties with their traditional lands.34 30 iwgia, “report of the african commission’s working group of experte on indigenous populations/communities” (copenhagen, 2005), https://www.iwgia.org/images/publications/african_commission_book.pdf. 31 oswaldo ruiz chiriboga, “the right to cultural identity of indigenous peoples and national minorities: a look from the inter-american system,” sur: revista internacional de direitos humanos 3, no. 5 (2006), https://doi.org/10.1590/s1806-64452006000200004; dieter kugelmann, “the protection of minorities and indigenous peoples respecting cultural diversities,” max planck yearbook of united nations law 11, no. 1 (2007), https://doi.org/10.1163/18757413-90000007. 32 bayo olupohunda, “protecting nigeria’s indigenous population,” punch, 2016, https://punchng.com/protecting-nigerias-indigenous-population/. 33 erica-irene a. daes, “some considerations on the rights of indigenous peoples to self determination,” transnational law and contemporary problems 3, no. 1 (1993). 34 jennifer gitiri, “protection of cultural rights of indigenous peoples under the iccpr/icescr and the african charter: a comparative study” (central european university, 2015), http://www.etd.ceu.hu/2015/gitiri_jennifer.pdf; indigenous peoples have been used to refer to tribes, aborigines, first people, first nations, ethnic groups, adivasi, janajati etc. it has also been used to refer to occupational groups with ancestral ties like hunter-gatherers, nomads, peasants, hill people, etc. therefore "people" under the african charter could rightly apply to indigenous or ancestral communities of the niger-delta of nigeria who share common ancestral ties with their traditional lands; olupohunda, “protecting nigeria’s indigenous population”; amah, “an appraisal of the rights of the niger-delta peoples over natural resources under the african charter on human and peoples’ rights”; an international meeting of experts on further study of the concept of the rights of peoples, convened by unesco held in paris on 27-30 november 1989, shs-89/vconf.602/7, para.23; miriam j. aukerman, “definitions and justifications: minority and indigenous rights in a central/east european context,” human rights quarterly 22, no. 4 (2000): 1011=1050, https://doi.org/10.1353/hrq.2000.0041; the niger delta houses a large number of different ethnic and linguistic groups, which includes andoni, brass, dioubu, etche, ijaw, kalabari, nembe, ogoni, okirika, ikwerres, orons, itsekiris, ukwanis, bribes, ibibio, efik, and other smaller minority groups, as well as some part of ibo and yoruba tribes. these different ethnic and linguistic groups are regarded as indigenous peoples; international crisis group, “the swamps of insurgency: nigeria’s niger delta lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 129 the indigenous peoples of the niger-delta of nigeria face the same danger experienced by other indigenous peoples of the world.35 they have been disposed of their ancestral lands, deprived of their sources of economic livelihood. their territory is constantly under military occupation, deprived not only of their territorial but also economic and political selfdetermination.36 their ancestral ties, traditional lifestyles, values and custom, cultural heritage all face extinction. the same applies to their identity, sense of pride, and traditional practices. the nigerian state has violated their collective rights to self-development, the entirety of their economic, social, and cultural rights, and their rights to dispose of their natural resources freely.37 it is worth reiterating that as far back as 1996, the human rights council had directed the nigerian government to immediately carry out legal reforms to guarantee human rights protection in line with the provisions of the iccpr and in particular, to take appropriate legislative and policy steps to secure the rights of indigenous peoples and indigenous minorities in nigeria.38 the nigerian government has not implemented these recommendations to date. the rights over natural resources provided in favor of indigenous peoples inure to the nigerdelta of nigeria. b. natural resources rights and the principle of self determination the right to self-determination is a fundamental principle of human rights. it entails the individual and collective right of a people to freely determine and pursue their political, economic, social, and cultural development and status.39 this right is linked with decolonization, especially in indigenous peoples, such as in australia and the usa. the international court of justice (icj) has held that this is a right held by the people rather than the government alone and that it is a norm of jus cogens which is the highest rule of international law and must be obeyed at all times.40 it is arguable that since self-determination is a right that attaches to "all peoples", the rights are also accruable to indigenous peoples of a state. the constitutional court of south africa has upheld indigenous peoples' rights to ownership of subsoil and minerals by their historical occupation and use.41 this principle is enshrined in the international labour organization (ilo) convention 169 on the indigenous and tribal peoples in independent countries, and this convention has two vital attributes: 1) the right of individuals to participate in the use, management, and conservation of natural resources derived from their lands. unrest” (brussels, 2006); hemen philip faga, “re-conceptualizing the right of the niger delta peoples to selfdetermination as indigenous peoples and national minorities in international law: exploring new horizon and research potentials,” martins library, 2020, https://martinslibrary.blogspot.com/2015/03/review-of-reconceptualizing-right-of.html; wikipedia, “indigenous peoples of the niger-delta,” n.d.; alan phillips, “the world directory of minorities and indigenous peoples-nigeria” (london, 2018), https://www.refworld.org/docid/4954ce6719.html. 35 olupohunda, “protecting nigeria’s indigenous population.” 36 daes, “some considerations on the rights of indigenous peoples to self determination.” 37 tim elombah, “indigenous peoples of niger delta commence earnest self-determin,” elombah, 2017, https://elombah.com/indigenous-peoples-of-niger-delta-commence-earnest-self-determination/. 38 human rights council, “consideration of reports submitted by states parties under article 40 of the covenant: concluding observations of the human rights committee” (geneva, 1996), ccpr/c/79/add.65. 39 nadesan satyendra, “self determination: principle and the law,” tamilnation, accessed december 31, 2016, http://www.tamilnation.org/selfdetermination/. 40 icj, case concerning east timor (portugal v. australia) (1995); matthew saul, “the normative status of selfdetermination in international law: a formula for uncertainty in the scope and content of the right?,” human rights law review 11, no. 4 (2011): 609–10, https://doi.org/10.1093/hrlr/ngr025. 41 constitutional court of south africa, alexkor ltd v. richterrald community (2005); pereira and gough, “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law.” indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 130 2) the government's consultation with the people to establish or ascertain to what degree the people's interest would be prejudiced. the above attributes can also be found in the aarhus convention on the access to environmental information and public participation in environmental decision-making.42 self–determination is a principle enabling people to determine their internal political status without being subjected to any form of external or outside interference.43 the right to political self-determination will not be sustainable without the correlative right of the beneficiaries to use and manage their natural resources. thus, articles 3 and 26 of the united nations declaration on the right of indigenous peoples provided for the right of self-determination of indigenous peoples and, more specifically, indigenous peoples' right to lands, territories, and resources they have traditionally occupied.44 indigenous peoples should be able to exercise a measure of control over their lands. in a broader context, land rights mean the right to partition, own, develop, utilization and decision-making on issues concerning the land.45 therefore, indigenous peoples’ land rights shall include preserving their ancestral shrines and their subsistence living. the state is obliged not only to respect these rights but also to protect them. the right to self-determination of indigenous peoples provides the basis within which the political, economic, and social rights of indigenous peoples can be realized within the framework of a sovereign state. while the right could not form the basis for the secession of indigenous peoples living within an independent state, it guarantees self-government in the form of autonomy in matters affecting them locally. though the principles of “psnr” are not legally binding, it is an essential element of the right of self-determination, which has attained the status of customary international law.46 further, the “psnr” principle has received wider acceptance, having been incorporated in many legally binding treaty laws like the iccpr, icescr, ilo conventions and even the african charter on human and peoples rights. admittedly, the principle of “psnr” does not transfer “sovereign” rights to peoples as against the state's government; the right accruable to indigenous peoples under the declaration is a “participatory rights”. consequently, indigenous peoples cannot be alienated in matters touching on their lands. thus, article 4 provides that the autonomy or self-government of indigenous peoples relates to their internal or local affairs. in contrast, article 46 (1) prohibits any interpretation of the declaration that suggests supporting the right to secession. the icj has defined the elf-determination principle as the “need to pay regard to the freely expressed will of the people…in matters concerning their condition”.47 in the east timor case,48 the court acknowledged the principle of self-determination as one of the "essential principles of international law” and a right with "erga omnes character”. also, in the endorois case49 the african commission acknowledged the right of self-determination as available for a community of people living in an independent state. 42 unece, “convention on access to information, public participation in decision-making and access to justice in environmental matters” (1998), https://www.unece.org/fileadmin/dam/env/pp/documents/cep43e.pdf. 43 kalana senaratne, “internal self-determination in international law: critical third world perspective,” african journal of international law 3, no. 2 (2013): 305–39, https://doi.org/10.1017/s2044251313000209. 44 frank dietrich, “natural resources, collective selfdetermination, and secession,” law, ethics and philosophy 6 (2018): 36, https://doi.org/10.31009/leap.2018.v6.02. 45 erica-irene a. daes, “human rights of indigenous peoples: second progress report of the special rapporteur” (geneva, 1999), e/cn.4/sub.2/1999/18. 46 pereira and gough, “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law”; hossain and chowdhury, permanent sovereignty over natural resources in international law: principle and practice; brownlie, principles of public international law. 47 icj, western sahara: advisory opinion (1975). 48 icj, case concerning east timor (portugal v. australia), 84. 49 hrw, “kenya: landmark ruling on indigenous land rights” (new york, 2010), https://www.hrw.org/news/2010/02/04/kenya-landmark-ruling-indigenous-land-rights. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 131 further, the african commission advisory opinion on undrip reaffirms the right to internal autonomy for indigenous peoples.50 the right to internal autonomy can only be meaningfully exercised by the indigenous communities when they are allowed to participate in decisions affecting the use of their lands. this is what the undrip described as the right of free, prior, and informed consent.51 the inter-american court of human rights (iachr) has endorsed and applied these rights in several cases involving indigenous peoples and their state governments.52 at the regional level, the african commission of human rights has recognized internal self-determination as available to communities in african states. the commission found for the land rights of the ogiek peoples of kenya.53 the commission has also made findings in favor of the mineral resources hosting peoples of ogoni located in the niger-delta area of nigeria. its communication requested the nigerian government to take necessary measures to ensure better protection of human rights of ogoni people and measures that will facilitate their enjoyment of environmental, health, land, and natural resources rights.54 therefore, it is no surprise that the natural resources hosting communities of the niger delta areas of nigeria55 are beginning to implement the self-determination principle to be enshrined in the constitution, giving them some form of control over the resources extracted daily from their land. the niger delta region of nigeria has been under perpetual tension for over three decades due to non-inclusion in decision-making and non-benefit of the indigenous inhabitants from the proceeds of hydrocarbon and other hydrocarbon resources exploited on their lands.56 c. conclusion we have seen that international law provides a set of legal principles through which communities can rely on their struggle for equity and justice about the distribution of natural resources. international law lays down some fundamental rights for the benefit of indigenous 50 shawkat alam and abdullah al-faruque, “from sovereignty to self-determination: emergence of collective rights of indigenous peoples in natural resources,” georgetown environmental law review 32, no. 1 (2020), https://www.law.georgetown.edu/environmental-law-review/wp-content/uploads/sites/18/2020/01/gtgelr190045.pdf. 51 lorenza b. fontana and jean grugel, “the politics of indigenous participation through ‘free prior informed consent: reflections from the bolivian case,” world development 77 (2016): 249–61, https://doi.org/10.1016/j.worlddev.2015.08.023. 52 inter-american court, case of the mayagna (sumo) awas tingni community v. nicaragua (2001), the court held that the community's right to its property prevented the nicaraguan government from unilaterally exploiting its natural resources and fulfilling its obligations under the inter-american convention on human rights. furthermore, the commission found that nicaragua was required to officially delimit, demarcate, and title the lands belonging to the awas tingni community with the community’s full participation and consideration of customary law, values, usage, and customs. the court concluded that demarcation could proceed only with the participation of the awas tingni community, which meant that they must give consent to such distinction; interamerican court, mary and carrie dann v. united states (2002), the commission held that the provisions in the american declaration on rights and duties of man on fair trial and property require that any determination of indigenous land rights be based on the fully informed consent of the whole community, meaning that all members must be fully and accurately informed and have the chance to participate; inter-american court, maya indigenous communities v. belize (2004), the commission held that “the duty to consult is a fundamental component of the state’s obligations in giving effect to the communal property right of the maya people in the lands that they have traditionally used and occupied". 53 african court on human and peoples’ rights, african commission on human and peoples’ rights v. republic of kenya (2017). 54 african commission on human and people’s rights, social and economic rights action center (serac) and center for economic and social rights (cesr) v. nigeria (2002). 55 wikipedia, “indigenous peoples of the niger-delta.” 56 terry mission bagia and samuel chisa dike, “the principle of permanent sovereignty over natural resources (psnr) how far with nigeria’s petroleum industry?,” the journal of jurisprudence, international law and contemporary issues 14, no. 1 (2020), https://ssrn.com/abstract=3767653. indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 132 and tribal peoples. further, it imposes obligations on states to protect these rights in favour of their indigenous communities. these rights include the rights to participate meaningfully in natural resources governance and benefit from the proceeds of natural resources exploitation in a manner that satisfactorily serves the indigenous communities' economic, social, and cultural needs. the right to self-determination and the “peoples” or “indigenous peoples” over their lands and natural resources are available to host indigenous communities of natural resources in nigeria. the exploitation of oil in the niger delta has severe consequences for the people. it results in oil spillage, the destruction of farmlands, the degradation of the ecosystem, and the disempowerment of the people. despite the vast oil revenue generated from the niger delta region, the indigenous communities in the region remain in abject penury without basic social infrastructure and any means of livelihood and empowerment. therefore, it is recommended that the entire legal regime on natural resources in nigeria be overhauled to give the natural resources hosting communities a measure of ownership and control rights overexploitation of the commodity within their domain. le gislative provisions extending the right to participation in decision-making over these resources to indigenous communities are pretty essential. we also recommend that the nigerian government fast-track constitutional and policy reforms provide and protect the rights of nigeria's indigenous communities to the natural resources located in their land. this will engender peace and development and strengthen the county’s federal practices. references abolurin, john adewale. democratisation, conflict management and the amnesty question in nigeria. ibadan: john archers, 2010. adetunberu, oludotun, and akeem o. bello. “agitations in the niger delta region, oil politics and the clamours for restructuring in nigeria.” international journal of peace and conflict studies (ijpcs) 5, no. 1 (2018): 115–25. http://www.rcmss.com/index.php/ijpcs; www.academix.ng. african commission on human and people’s rights. social and economic rights action center (serac) and center for economic and 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punch, 2016. https://punchng.com/protecting-nigerias-indigenous-population/. omorogbe, yinka, and peter oniemola. “property rights in oil and gas under domanial regimes.” in property and the law in energy and natural resources, edited by aileen mcharg, barry barton, adrian bradbrook, and lee godden. oxford: oxford university press, 2010. https://doi.org/10.1093/acprof:oso/9780199579853.003.0006. pereira, ricardo. “the exploration and exploitation of energy resources in international law.” in environmental and energy law, edited by karen makuch and ricardo pereira, 199–224. london: wiley-blackwell, 2012. pereira, ricardo, and orla gough. “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to self-determination of indigenous peoples under international law.” melbourne journal of international law 14, no. 2 (2013): 451–95. phillips, alan. “the world directory of minorities and indigenous peoples-nigeria.” london, 2018. https://www.refworld.org/docid/4954ce6719.html. rønne, anita. “public and private rights to natural resources and differences in their protection?” in property and the law in energy and natural resources, edited by aileen mcharg, barry barton, adrian bradbrook, and lee godden. oxford: oxford university press, 2010. https://doi.org/10.1093/acprof:oso/9780199579853.003.0003. satyendra, nadesan. “self determination: principle and the law.” tamilnation. accessed december 31, 2016. http://www.tamilnation.org/selfdetermination/. saul, matthew. “the normative status of self-determination in international law: a formula for uncertainty in the scope and content of the right?” human rights law review 11, no. 4 (2011): 609–10. https://doi.org/10.1093/hrlr/ngr025. schrijver, nico. sovereignty over natural resources: balancing rights and duties. cambridge: cambridge university press, 1997. https://doi.org/10.1017/cbo9780511560118. senaratne, kalana. “internal self-determination in international law: critical third world perspective.” african journal of international law 3, no. 2 (2013): 305–39. https://doi.org/10.1017/s2044251313000209. indigenous peoples’ rights over natural resources: … amah emmanuel ibiam, hemen philip faga 136 shebbs, emmanuel, and ray njoku. “resource control in nigeria issues of politics, conflict and legality as challenge to development of the niger delta region.” journal of good governance and sustainable development in africa (jggsda) 3, no. 3 (2016). ttp://rcmss.com/2017/jggsda/resource-control-in-nigeriaissues-of-politics-conflictand-legality-as-challenge-to-development-of-the-niger-delta-region.pdf. supreme court. attorney general abia state v. attorney-general federation (2002). un. “permanent sovereignty over natural resources general assembly resolution 1803 (xvii).” new york, 1962. https://legal.un.org/avl/ha/ga_1803/ga_1803.html. ———. “united nations emergency force.” un resolution, 1962. http://www.geocities.ws/savepalestinenow/unresolutions/studyguide/sgunresgasum1960. html. unece. convention on access to information, public participation in decision-making and access to justice in environmental matters (1998). https://www.unece.org/fileadmin/dam/env/pp/documents/cep43e.pdf. unep. “rio declaration on environment and development.” rio de janeiro, 1992. https://www.un.org/en/development/desa/population/migration/generalassembly/docs/gl obalcompact/a_conf.151_26_vol.i_declaration.pdf. wikipedia. “indigenous peoples of the niger-delta.” accessed february 5, 2020. https://en.wikipedia.org/wiki/category:indigenous_peoples_of_the_niger_delta. 41 the importance of cybersecurity awareness for children yuliana universitas udayana, indonesia e-mail: yuliana@unud.ac.id submitted: feb 10, 2022; reviewed: jun 29, 2022; accepted: jun 30, 2022 article info abstract keywords: awareness, children, cybersecurity. doi: 10.25041/lajil.v4i1.2526 online school during the covid-19 pandemic makes the children prone to cyberattacks and malware. therefore, cybersecurity awareness among children is critical. online games and stories caused children to neglect their studying time. therefore, this paper aims to describe the importance of cybersecurity awareness among children. analyses were performed by using a literature review. inclusion criteria are review and research articles. inclusion criteria are review and research articles that were read twice to reduce the bias, then were summarized and narrated descriptively. results revealed that cybersecurity awareness could be increased by digital literacy training. children should be taught how to avoid risky behavior online. the cybersecurity awareness program is suitable for children to avoid phishing, pornography, cyberbullying, identity theft, and breaking of privacy. children must be taught how to keep their passwords safe and private. they also need to be more cautious when playing online games. in conclusion, digital literacy and cybersecurity programs can be taught to children. these programs are suitable for raising cybersecurity among children. a. introduction all users are prone to various security risks when they spend significant time online. there are many different terms are used to address these risks that internet users get exposed to in their everyday lives. some terms are used interchangeably such as cybersecurity, online safety, and internet security. cybersecurity is widely used because it has many perspectives. however, there is no clear operational definition among scholars.1 cybersecurity is defined as the collection of policies and concepts about guidelines, risk management, and technologies to protect the cyber environment and users’ assets. cybersecurity ensures the maintenance of the 1 farzana quayyum, daniela s cruzes, and letizia jaccheri, “cybersecurity awareness for children: a systematic literature review,” international journal of child-computer interaction 30, no. 1 (2021): 1–25, https://doi.org/10.1016/j.ijcci.2021.100343. volume 4 issue 1, january-june 2022: pp. 41-48. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:yuliana@unud.ac.id the importance of cybersecurity awareness for children yuliana 42 security properties of the organization and users. the users include children. online school during the covid-19 pandemic makes the children prone to cyberattacks and cyber malware. they need to raise their awareness of cybersecurity. online games and stories caused children to neglect their studying time.2 the increasing availability of the internet for children during online school raises concerns among parents and society. children are prone to online risks. therefore, it is important to develop a cybersecurity program awareness to increase the students’ awareness. some important things to be taken into account are cybersecurity risks for children, approaches, theories, and solutions in raising cybersecurity awareness.3 a substantial amount of time is spent online for educational and entertainment purposes. the internet gives many opportunities. therefore, security awareness should be taught to the children. children are difficult to discern between the opportunities and risks of digital systems. however, those online activities create threats to the children’s privacy and safety. the danger of the risks is not realized until it is very late. online abuses could happen. 4 critical aspects that need to be evaluated and concerned about are the concern, solutions, recommendations, and approaches in raising cybersecurity among children. therefore, this paper aims to describe the importance and the way to raise cybersecurity awareness for children. this research is a narrative literature review. articles were taken from the science direct and google scholar databases. inclusion criteria are review and research articles. exclusion criteria are not peer-reviewed articles and unavailable full-text articles. articles were read twice to reduce the bias. the selected articles were summarized and narrated descriptively. b. discussion 1. the hazard of internet use among children the use of the internet gives a lot of comfort for people. online working, studying, or accessing entertainment are possible by using the internet. the use of the internet can increase the social well-being of children. however, there are some threats such as cyberbullying, identity theft, pornography, etc. children should be taught how to avoid risky behavior online. cybersecurity awareness can be increased by digital literacy training. the cybersecurity awareness program is good to be given to children in avoiding phishing, pornography, cyberbullying, identity theft, and breaking to privacy. children must be taught how to keep their passwords safe and private. they also need to be more cautious when playing online games. 5 2. the importance of cybersecurity awareness educating the children about online dangers is very essential. many countries have implemented special programs to raise awareness. children need to be educated about how to behave safely online. in african countries, there is a lack of this program implementation. it was developed an initiative movement to raise awareness of a cyber-safety culture for children. 6 a study about children from 12 to 19 years old as internet users in malaysia revealed that this group has the highest number of internet users. they often overshare information. everything on the internet is perceived as the truth. children have less knowledge in protecting sensitive information. this should be the concern because personal data should be protected. 2 quayyum, cruzes, and jaccheri. 3 quayyum, cruzes, and jaccheri. 4 quayyum, cruzes, and jaccheri. 5 martina j zucule de barros and horst lazarek, “a cyber safety model for schools in mozambique,” in proceedings of the 4th international conference on information systems security and privacy (icissp 2018), 2018, 251–58, https://doi.org/10.5220/0006573802510258. 6 barros and lazarek. lampung journal of iternational law (lajil) p-issn 2656-6532 volume .. number .., month… year e-issn: 2723-2603 43 some challenges in increasing security awareness are understanding and awareness. when the messages are understood, they are more likely to be accepted. 7 cybersecurity awareness is related to the methodology to educate the users to be aware of cyber threats and data stealing. the degree of users’ understanding is related to the importance of information security. there are two main purposes of cybersecurity awareness, namely alerting and understanding the risks. human-related vulnerability can happen at personal and organizational levels. 8 3. solution for increasing awareness security program in education program the popularity of tablets and smartphones makes children undergo a rapid shift of game-based learning (gbl). this shift is caused by mobility and a built-in sensor. therefore, blended and mobile learning is ubiquitous. there are six important dimensional frameworks of this type of learning as follows: 9 a. spatio-temporal b. collaboration/social c. pedagogy d. personalization e. data security & privacy f. session the educational program is developed based on the solutions. both technological aspects and pedagogical qualities should be maintained during the online learning10 cybersecurity awareness has been studied in recent years. children are included in the subject of the study. based on the world health organization definition, children are anyone under 18 years. password practices are the concerns of cybersecurity in children. a simple password is easy to be hacked. 11 children are an essential part of the community because they have a bright and long future. the main concern is the safety of the children. using smartphones and computers has some risks for children. however, we cannot limit the children’s in accessing the material online, but we can supervise them on how to surf online safely. therefore, the ministry of education of the union of arab emirates implemented a cybersecurity awareness program. this program was given to students from 8 to 10 years old. it was revealed that this program is effective to reduce the online risks for children. the students learn how to behave online safely. 12 the ministry of education in the union of arab emirates focused on training and education programs for the students in internet best practices. the goal is to increase cybersecurity and cyber awareness. the grade 4 students (8-10 years old) were given the internet safety topic as the major subject of the design and technology program. it was considered as a co mpulsory 7 noor hayani abd rahim, “assessment of cybersecurity awareness program on personal data protection among youngster in malaysia” (2017). 8 filippos giannakas et al., “security education and awareness for k-6 going mobile,” international journal of interactive mobile technology 10, no. 2 (2016): 41–48. 9 filippos giannakas, georgios kambourakis, and andreas papasalouros, “a critical review of 13 years of mobile game-based learning,” educational technology research and development 2, no. 1 (2017): 1–20, https://doi.org/10.1007/s11423-017-9552-z. 10 giannakas et al., “security education and awareness for k-6 going mobile.” 11 suzanne prior and karen renaud, “age-appropriate password ‘best practice’ ontologies for early educators and parents,” international journal of child-computer interaction, 2020, 100169, https://doi.org/10.1016/j.ijcci.2020.100169. 12 arwa a al shamsi, “effectiveness of cyber security awareness program for young children : a case study in uae,” international journal of information technology and language studies (ijitls) 3, no. 2 (2019): 8–29, https://doi.org/10.13140/rg.2.2.28488.14083. the importance of cybersecurity awareness for children yuliana 44 module. this program was done for three months. the materials comprised of the internet usages, online dangers, the ways to protect themselves online, and solutions to respond to the online risks properly. at the end of the program, children should be able to answer the following questions such as depicted in figure 1 below. the special program that needs to be concerned, including the theme and constructs, is shown in figures 2 and 3.13 figure 1. the questions for children’s assessment after finishing the cybersecurity awareness program14 13 shamsi. 14 shamsi. lampung journal of iternational law (lajil) p-issn 2656-6532 volume .. number .., month… year e-issn: 2723-2603 45 figure 2. the main construct and theme of cybersecurity awareness program15 figure 3. the content of the cybersecurity awareness program16 smartphones usage has been widely used across the countries, including south african society. however, there is no special curriculum regarding the cyber security in schools. the university teaches some cyber security principles. however, it is only applied to students who are taking computing-related courses. the students taking the computing courses are only small 15 shamsi. 16 shamsi. the importance of cybersecurity awareness for children yuliana 46 parts of the community. therefore, cybersecurity should be taught to children. there is an essential principle in giving the requisite skills in cyber security. this principle should be started as early as possible, especially in primary school. it can be embedded into the national curriculum. gender imbalance must be stopped in the cyber security awareness programs. cybersecurity awareness should be seen as important as reading, writing, and arithmetic, especially in the technology era. 17 special curricula for an early age are implemented in the united kingdom. the program includes information and communications technology as a foundational skill for early age students. this is essential to make sure that the children understand online safety behavior, including how to evaluate fake news or hoaxes. there are two important elements of cyber security education. those elements are awareness and special steps in taking precautions. 18 the important steps of maintaining cybersecurity are shown in figure 4. special infrastructure security and data protection should be provided.19 figure 4. security triangle of cybersecurity20 17 isabella m venter et al., “cyber security education is as essential as ‘the three r’s,’” heliyon 5, no. august (2019): 1–7, https://doi.org/10.1016/j.heliyon.2019.e02855. 18 venter et al. 19 yuchong li and qinghui liu, “a comprehensive review study of cyber-attacks and cyber security ; emerging trends and recent developments,” energy reports, no. article in press (2021), https://doi.org/10.1016/j.egyr.2021.08.126. 20 li and liu. lampung journal of iternational law (lajil) p-issn 2656-6532 volume .. number .., month… year e-issn: 2723-2603 47 c. conclusion in conclusion, digital literacy and cybersecurity programs can be taught to children. these programs are good to raise cybersecurity among children. cybersecurity awareness is related to the methodology to educate the users to be aware of cyber threats and data-stealing. the degree of users’ understanding is related to the importance of information security. there are two main purposes of cybersecurity awareness, namely alerting and understanding the risks. human-related vulnerability can happen at personal and organizational levels. future research should include how to train the children behave online based on the age categories because every stages of the children’s development have their own specific critical things. references barros, martina j zucule de, and horst lazarek. “a cyber safety model for schools in mozambique.” in proceedings of the 4th international conference on information systems security and privacy (icissp 2018), 251–58, 2018. https://doi.org/10.5220/0006573802510258. giannakas, filippos, georgios kambourakis, and andreas papasalouros. “a critical review of 13 years of mobile game-based learning.” educational technology research and developmentt 2, no. 1 (2017): 1–20. https://doi.org/10.1007/s11423-017-9552-z. giannakas, filippos, georgios kambourakis, andreas papasalouros, and stefanos gritzalis. “security education and awareness for k-6 going mobile.” international journal of interactive mobile technology 10, no. 2 (2016): 41–48. li, yuchong, and qinghui liu. “a comprehensive review study of cyber-attacks and cyber security ; emerging trends and recent developments.” energy reports, no. article in press (2021). https://doi.org/10.1016/j.egyr.2021.08.126. prior, suzanne, and karen renaud. “age-appropriate password ‘best practice’ ontologies for early educators and parents.” international journal of child-computer interaction, 2020, 100169. https://doi.org/10.1016/j.ijcci.2020.100169. quayyum, farzana, daniela s cruzes, and letizia jaccheri. “cybersecurity awareness for children: a systematic literature review.” international journal of child-computer interaction 30, no. 1 (2021): 1–25. https://doi.org/10.1016/j.ijcci.2021.100343. rahim, noor hayani abd. “assessment of cybersecurity awareness program on personal data protection among youngster in malaysia,” 2017. shamsi, arwa a al. “effectiveness of cyber security awareness program for young children : a case study in uae.” international journal of information technology and language studies (ijitls) 3, no. 2 (2019): 8–29. https://doi.org/10.13140/rg.2.2.28488.14083. venter, isabella m, j blignaut, karen renaud, and m anja venter. “cyber security education is as essential as ‘the three r’s.’” heliyon 5, no. august (2019): 1–7. https://doi.org/10.1016/j.heliyon.2019.e02855. the importance of cybersecurity awareness for children yuliana 48 a. introduction b. discussion c. conclusion 1 strengthening global governance: indonesia’s court and the central kalimantan forest fire case ary aprianto ministry of foreign affairs of indonesia, indonesia, email: aryaprianto@yahoo.com submitted: september 14, 2020; reviewed: december 16, 2020; accepted: january 3, 2021 article info abstract keywords: international law, domestic court, global governance, international law at domestic level. doi: 10.25041/lajil.v3i1.2102 the success of global governance depends on the coherency of efforts of its actors, notably states. states are expected to meet their international obligation, including through their domestic policies. as a member of the international community, indonesia has become a party to numerous treaties and participated in various effort to address global challenges. yet reference to international law by indonesia’s domestic court has so far been justified only for the sake of improving the quality of judgment or maintaining indonesia’s standing as a law-abiding state. further, most indonesia’s legal scholars focus their attention on the position of international law in the domestic legal hierarchy, and how monism and dualism approaches influence the implementation of international law at the national level. this article focuses on how domestic court judgments have impacts outside national borders. it employs a normative research method, and uses the central kalimantan forest fire case as the stepping-stone of discussion. it concludes that the application of international law by indonesia’s domestic court supports the intention of delivering a high quality judgment and strengthening the global governance. a. introduction international law scholars have long been discussing the relationship between domestic court and international law and international legal order. in the 60s, richard falk argued that domestic court, when hearing an international law case, serves a dual function – as a national institution and an agent of international legal order. he then voiced the probability of the court facing a conflict between defending national interests and upholding international law.1 scholars in the later years have suggested a more harmonious relation between domestic court and international law. david sloss argues that domestic court may employ international law to this article is the author's personal opinion. 1 richard a falk, “the role of domestic courts in the international legal order,” indiana law journal 39, no. 3 (1964): 429-445, 436. volume 3 issue 1, 2021: pp. 1-18. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil strengthening global governance: indonesia’s court and the … ary aprianto 2 strengthen democracy, by advocating policies that conform to democratic values in various international human rights treaties.2 sloss’s suggestion is pertinent when it comes to globalization and global governance. the united nations (un) in 1995 offered a simple understanding of “global governance” by referring it to the work of multiple actors to manage their common affairs and different interests towards the achievement of common goals.3 in recent years, the unprecedented complexity of global challenges (transnational organized crime, human migration, climate change, or communicable diseases, to name a few) has ‘forced’ the international community to further strengthening synergy among relevant actors at every level of governance (global, regional, national, and local). this has meant that the international community, through international law, has become more intrusive to states’ domestic matters and the daily life of common people. referring to surendra bandhari, the world has been seeing the rise of global constitutionalism, which is characterized by several critical elements such as the supremacy of international law and harmonization of domestic rules.4 towards this increasingly unavoidable reality, question arises as to the attitude of indonesia’s domestic court to international law. do indonesian judges feel the need to refer to international law? what indonesian judges have in mind when international law is cited or referred to in the case on their hands? or when the judges refer to international law, do they think of the international implication of their judgment? indonesia’s domestic courts do refer to international law from time to time. the most notable example being the constitutional court, which was established only in 2003. several scholars have written about the contribution of international law to the deliberations of the court, such as kama sukarno,5 umbu rauta and ninon melatyugra,6 or gede marhaendra wija atmaja et all7. as these scholars have described, the constitutional court routinely utilizes international law to help it interpret national law, enhance the quality of judgment, enrich national law, and develop the capacity of indonesia’s legal scholars. they advocate for further utilization of international law henceforth. yet those scholars stopped short of discussing the international impact of the court’s application of international law. to put the international impact of domestic court judgment into perspective, two examples are presented here in brief. in 2006 the constitutional court declared the law no. 27/2004 on truth and reconciliation commission as unconstitutional, for it contravened the principles of equality before the law and responsibility of state in promoting and protecting 2 david sloss, “using international law to enhance democracy,” virginia journal of international law 47, no. 1 (2006): 1–61. 3 https://www.gdrc.org/u-gov/global-neighbourhood/ accessed on may 6, 2020. see also, klaus dingwerth and philipp pattberg, “global governance as a perspective on world politics,” global governance 12, no. 2 (2006): 187–89; frank biermann and philipp pattberg, “global environmental governance: taking stock, moving forward,” annual review of environment and resources 33, no. 1 (2008): 278–79, doi: 10.1146/annurev.environ.33.050707.085733. 4 surendra bhandari, “global constitutionalism and the constitutionalization of international relations: a reflection of asian approaches to international law,” ritsumeikan annual review of international studies 12 (2013): 16–17, doi: 10.2139/ssrn.2402084. 5 kama sukarno, “penerapan perjanjian internasional di pengadilan nasional indonesia: studi terhadap putusan-putusan mahkamah konstitusi,” padjadjaran journal of law 3, no. 3 (2016): 587–608, doi: 10.22304/pjih.v3.n3.a8. 6 umbu rauta and ninon melatyugra, “hukum internasional sebagai alat interpretasi dalam pengujian undang-undang,” jurnal konstitusi 15, no. 1 (2018): 73–94, doi: 10.31078/jk1514. 7 gede marhaendra wija atmaja et al., “sikap mahkamah konstitusi mengenai keberlakuan perjanjian internasional dalam hubungannya dengan hukum nasional,” jurnal magister hukum udayana (udayana master law journal) 7, no. 3 (2018): 329–42, doi: 10.24843/jmhu.2018.v07.i03.p05. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 3 human rights, as well as right to life and right not to be subjected to torture, as enshrined in the constitution. to support their conclusion, the constitutional judges stressed that international law demands that gross violation of human rights must be settled by law and that the granting of amnesty must be limited so as not to amount to impunity. the court relied on the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, which is a 2005 un general assembly resolution. the judges also declared that it is the responsibility of the state to prevent human rights violations, bring the perpetrator to justice, and offer remedy to victims.8 in 2020, judges at the jakarta administrative court ruled that the government’s policy of limiting access of internet in the papua and west papua provinces violated law no. 19/2016 on the amendment to law no. 11/2008 on information and electronic transaction. the laws stress that the government can only stop access to materials that are against the law. the judges also found that the government contradicted the government regulation in lieu of law no. 23/1959 on emergency situation. the judges refer to the international covenant on civil and political rights / iccpr (indonesia is a party to), including human rights committee’s general comment no. 34 on article 19 of iccpr (on freedom of opinion and expression), to assist them in formulating the judgment.9 the two judgments have two different perspectives. domestically, the courts exercised their authority in ensuring the supremacy of the constitution and national law. yet the courts also ruled, albeit indirectly, that government’s (executive body) policy must also adhere to international law. consequently, the courts assisted in strengthening global human rights governance, by making sure that indonesia acts in accordance with it. not many scholarly articles have been dedicated to discussing the impact of indonesia’s domestic court judgments on global governance. instead, it is generally accepted that indonesia must honor its treaty obligations under the principle of pacta sunt servanda. while it is true that a state must abide by its international obligations, an awareness of what the consequences are from observing international law must also be properly identified. further, most indonesian scholars, including those that are referred to earlier, focus their attention on the position of international law (treaty) within the hierarchy of national law, leading them to the debate between monism and dualism.10 an essential reason behind this: indonesia’s constitution is silent concerning the relationship between international law and national law. 8 the law on truth and reconciliation commission, no. 006/puu-iv/2006 (constitutional court december 4, 2006). 9 papua internet restriction, no. 230/g/tf/2019/ptun-jkt (jakarta administrative court june 3, 2020). 10 see for example damos dumoli agusman, hukum perjanjian internasional: kajian teori dan praktik indonesia (bandung: refika aditama, 2010); mr aminoto and agustina merdekawati, “prospek penempatan perjanjian internasional yang mengikat indonesia dalam hierarki peraturan perundang-undangan indonesia,” mimbar hukum fakultas hukum universitas gadjah mada 27, no. 1 (2015): 82–97, doi: 10.22146/jmh.15912; damos dumoli agusman, “the courts and treaties: indonesia’s perspective,” padjadjaran journal of international law 1, no. 1 (2017): 1-18; damos dumoli agusman, “the dynamic development on indonesia’s attitude toward international law,” indonesian journal of international law 13, no. 1 (2015): 1–31, doi: 10.17304/ijil.vol13.1.624; ninon melatyugra, “mendorong sikap lebih bersahabat terhadap hukum internasional: penerapan hukum internasional oleh pengadilan indonesia,” refleksi hukum 1, no. 2 (2016): 45–60, doi: 10.24246/jrh.2016.v1.i1.p45-60; wisnu aryo dewanto, “penerapan perjanjian internasional di pengadilan nasional: sebuah kritik terhadap laporan delegasi republik indonesia kepada komite hak asasi manusia perserikatan bangsa-bangsa tentang implementasi kovenan internasional tentang hak-hak sipil dan politik,” padjadjaran jurnal ilmu hukum 1, no. 1 (2014): 57–77, doi: 10.22304/pjih.v1n1.a4. strengthening global governance: indonesia’s court and the … ary aprianto 4 against that backdrop, this article attempts to answer questions about the international impact of indonesia’s domestic court judgments and the role of court in strengthening global governance. this article employs a normative research method, by utilizing the central kalimantan forest fire case as a stepping-stone for the discussion.11 the considerations of the judges will be examined to identify their relevance outside indonesia’s domestic realm. research materials are collected through library research, and consist primarily of courts decisions as well as relevant books and academic articles.12 the merit of the central kalimantan forest fire case is on human rights violations as direct and indirect results of the frequent occurrence of forest fire. there are several reasons why this case is chosen. first, the case relates to the protection of nature, which has been the priority of global governance, considering the benefits of nature to our climate and well-being. second, forest fire is a formidable challenge for indonesia for it occurs almost annually, resulting in tremendous social, financial and political costs – domestically and across the border. lastly, indonesia possesses large areas of tropical rainforests and has repeatedly stressed its commitment to preserving nature. the success of global governance depends on the willingness and ability of relevant actors to put up efforts and collaborate. international law has become critical in laying the foundation for global governance by creating international organizations that are dedicated to foster global collaboration and/or by facilitating the international community to attain certain common goals. un charter, for example, is the legal foundation for the un organization and contains norms to facilitate countries in attaining the purposes of the organization, such as on peaceful settlement of dispute and limitation on the use of force. this article explores the role of domestic court in strengthening global governance, the international impacts of the forest fire case, and why the judgment is relevant to indonesia’s international responsibility. noting the limited number of scholarly articles addressing the subject, the article is expected to help develop the awareness of international law among indonesian legal practitioners, by highlighting the role of domestic courts in global governance. this awareness is essential since international law also contributes to efforts in addressing global challenges. this article refers only to the treaty unless otherwise indicated. it does not discuss the treaty's status within indonesia's national law (the monism and dualism discourse). as scholars have indicated, practices of indonesia’s domestic courts have found no consistency for the discourse.13 for example, the constitutional court has referred to treaties that indonesia is not a party to. in the case of the retroactivity of indonesia’s counter-terrorism law, the court referred to iccpr, the american convention on human rights, and the rome statute of the international criminal court. indonesia was not a party to iccpr when the judgment was announced in 2003. up until this article is drafted, indonesia is not a party to the other two instruments. there has also been suggestion on the limitations of monism and dualism in analyzing the practical relations between national and international law.14 further, as will be discussed, domestic court in practice can sidestep the monism – dualism debate by applying an indirect 11 central kalimantan forest fire case, no. 3555 k/pdt/2018 (supreme court of indonesia, cassation level july 16, 2019); central kalimantan forest fire case, no. 118/pdt.g/lh/2016/pn plk (palangkaraya district court march 22, 2017). 12 soerjono soekanto and sri mamudji, penelitian hukum normatif: suatu tinjauan singkat (jakarta: rajawali press, 2009), 13. 13 agusman, op.cit., 13–15; sukarno, op.cit., 591. 14 ninon melatyugra, op.cit., 48–49; pierre-hugues verdier and mila versteeg, “international law in national legal systems: an empirical investigation,” the american journal of international law 109, no. 3 (2015): 514-533, 516, doi: 10.5305/amerjintelaw.109.3.0514. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 5 application of treaty. nonetheless, the article also find that sufficient understanding on the status of international law in the domestic sphere remains essential. b. discussion 1. the case on forest fire in central kalimantan the central kalimantan forest fire case run from 2016-2019. the case was brought by several individuals residing in the central kalimantan province against indonesia’s central government, central kalimantan provincial government and central kalimantan provincial house of representative. this case is a citizen lawsuit. under indonesia’s law, citizen lawsuit facilitates citizen(s) to bring a case against the government for act of commission or omission, which resulted in the infringement of the citizens’ rights. in citizen lawsuit, compensation requested by the plaintiff is in the form of government’s policies to prevent the occurrence of similar acts.15 the case was related to a large-scale forest fire and environmental destruction, which caused detrimental effects in the economic, health, and social aspects of the plaintiffs’ life.16 the plaintiffs recorded that forest fire in central kalimantan occurred intermittently from 1997 to 2015, which the plaintiffs argued was the result of the government’s negligence. quoting data from the national agency for disaster management, the plaintiffs presented that in 2015 alone more than 196.000 hectares of peatland and 133.000 hectares of non-peat land were burning. the plaintiffs recorded that the fire has caused widespread haze in several districts of the province, the spread of diseases, school closure, and interruption to public activities. the plaintiffs claimed the infringement of their human rights under indonesia’s national law, notably the right to a healthy environment. in their arguments, the plaintiffs cited the constitution, the law no. 39/1999 on human rights, and the law no. 32/2009 on protection and management of environment. the plaintiffs also referred to the un guiding principles on business and human rights (a un human rights council resolution), and the international covenant on economic, social, and cultural rights (icescr), which indonesia is a party to. the district court concurred with the plaintiffs’ arguments. it declared that the governments had acted against the law by failing to exercise their responsibilities to prevent fire and mitigate its impacts. the court also considered the rio declaration on environment and development in the formulation of their judgment. the court ordered the central and provincial governments (following their respective authority) to make necessary policies, ranging from creating implementing regulations to the law on the environment, creating a road map on the prevention and mitigation of forest fire, environmental law enforcement, reassessing land and forest permits, to providing public health facilities and creating a comprehensive system at a local level to monitor and prevent forest fire. the government brought the judgment for review to the provincial court and supreme court (cassation level). both courts concurred with the district court’s judgment.17 the government accepted the judgment. hence it is final. 15 supreme court of indonesia research, education, training and education agency, “class action and citizen lawsuit: research report” (supreme court of indonesia, 2009), 11, 49. 16 central kalimantan forest fire case, palangkaraya district court march 22, 2017. 17 central kalimantan forest fire case, supreme court of indonesia, cassation level july 16, 2019. strengthening global governance: indonesia’s court and the … ary aprianto 6 2. domestic courts as an actor of global governance in recent years, globalization has grown at an unprecedented rate. as thomas friedman puts it in one of his books, our world has become a single global network.18 the almost free movement of goods, capital, service and ideas have enabled states to accumulate resources to further their development. people has also gained greater opportunity for self-empowerment. yet globalization also brings tremendous challenges, such as those that have been named earlier. the gravity of these challenges has put ‘global governance’ at the forefront of the world diplomacy. the international community has regarded global governance as a tool to address common global problems. in this sense, global governance is not only an observable global phenomenon, which is characterized by the proliferation of actors; multilevel governance system that is inseparably linked (global, regional, national, local); relation among actors that is not always based on power, norms, or bargaining; and the emergence of new source of authority beyond states, as was described by klaus dingwerth and philipp pattberg. they also argued that global governance is a political program, to assist the international society in responding to global problems.19 a compelling example of global governance is the efforts to address climate change, as decades of competing national and business interests, lack of affordable clean technology and the different perspective on the risks generated by climate change have presented formidable challenges for the international community. simply put, global governance represents the impossibility of international actors (states, inter-government organizations, or civil society organizations) to work separately in solving problems that are global in nature. as was highlighted by the un in 2014, global governance must encompass "…the totality of institutions, policies, norms, procedures, and initiatives through which states and their citizens try to bring more predictability, stability, and order to their responses to transnational challenges". these transnational challenges are to increase the supply of global public goods (for example peace and security) and reduce the flow of global public "bad" (greenhouse gas emission, human trafficking, biodiversity losses, etc.).20 elements of global governance (policies, treaties, or actors) interact with each other, creating networks of collaboration, dependence, mutual support, and even competition (fragmented).21 despite these various characteristics, it is essential to recall that all those elements must move in the same and right direction if they are to contribute to solving global problems. one way to ensure it is to further the utilization of international law, notably treaties. on a practical aspect, international law has become more critical in facilitating the international community to attain common goals. on its substantive aspect, international law, which is created and shaped by international actors, is a product of global governance. a good example is the multilateral trade system, which is administered particularly by the world trade organization (wto). created by states in 1995 as a successor to the 1948 general agreement on tariffs and trade, wto administers various agreements that are negotiated by states to further international trade. those rules are binding and enforceable. other than treaty, states have also negotiated a great number of ‘soft law’, such as un general assembly (unga) resolution or declaration. several reasons can be attached to this development, such as the presence of new issues that are previously not seen as critical by the international community, to serve as a compromise if states fail to reach a binding agreement, 18 thomas friedman, the world is flat (new york: picador, 2007). 19 dingwerth and pattberg, op.cit., 189–194. 20 vereinte nationen, ed., global governance and global rules for development in the post-2015 era: policy note, (new york, ny: united nations, 2014), vi. 21 rakhyun e kim, “is global governance fragmented, polycentric, or complex? the state of the art of the network approach,” international studies review 22, no. 4 (2019): 903931, 934–936, doi: 10.1093/isr/viz052. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 7 to facilitate the participation of non-state actors, to reduce political and legal cost, or simply because states believe that there exist no urgency to create a binding instrument for certain issues.22 even though they lack binding force, soft law carries legal and political significance to influence states’ behavior. it may also lay the foundation for the gradual formation of customary rules or treaty provisions. to give a perspective, there are around 560 multilateral treaties deposited with the un secretary-general, covering plenty of issues such as human rights, disarmament, penal matters, and the environment.23 as a comparison, the unga alone adopted more than 300 resolutions in its 2018-2019 session. the 2030 agenda for sustainable development, containing goals and standard of conduct for states in their domestic development, is a unga resolution. even the paris agreement on climate change is considered by some scholars as not a treaty, due to the absence of binding commitment and enforcement mechanism.24 the proliferation of soft law is a good example of what scholars believe is the flexible and dynamic nature of global governance. yet in certain areas of critical importance, people remain convinced that adherence to global governance rules and institutions would be best achieved through binding instrument. ensuring compliance of state with its international responsibilities remains a delicate issue that sits at the intersection between international law and international relations. it is generally understood that state becomes a party to a treaty and acts in accordance with it if the treaty suits its national interests. there is no supranational organization that can force a state to join a treaty, and monitor and enforce compliance, except with the state’s consent. in the absence of state consent, various enforcement mechanisms have been recognized such as countermeasures and sanction,25 and by bringing the state before its own court. sloss believes that the domestic court may help promote democracy by employing international law. this is so because international law incorporates norms and values that have been accepted by the community of nations, such as human rights and humanitarian law. accordingly, the domestic court may act as an agent to uphold international law and global governance. eyal benvenisti and george brown offered a slightly different view. they highlighted the presence of certain interest groups that put strong pressure on the domestic legal system by taking advantage of the greater movement of capital, as facilitated by globalization. in this situation, they argued that domestic court can actually block government policies that are incompatible with national and international law.26 the opinion of the above scholars is a testament that the role of state in global governance remains critical, despite the presence of so many non-state actors. this is due among others to state’s authority over people, land, and resources. joana setzer and michal nachmany argued that in polycentric global governance, state is the central point in the mitigation and adaptation process, promoting societal changes, and creating better national regulation and policies in 22 antonio cassese, international law, first edition. (oxford: oxford university press, 2001), 161; kenneth w. abbott and duncan snidal, “hard and soft law in international governance,” international organization 54, no. 3 (2000): 421-456, 434, doi: 10.1162/002081800551280. 23 https://treaties.un.org/, accessed on may 20, 2020. 24 lavanya rajamani, “the 2015 paris agreement: interplay between hard, soft and nonobligations,” journal of environmental law 28, no. 2 (2016): 337-358, 337, doi: 10.1093/jel/eqw015; anne-marie slaughter, “the paris approach to global governance,” project syndicate, december 28, 2015, https://www.project-syndicate.org/commentary/paris-agreement-model-for-globalgovernance-by-anne-marie-slaughter-2015-12. 25 antonio cassese, op.cit., 234. 26 e. benvenisti and g. w. downs, “national courts, domestic democracy, and the evolution of international law,” european journal of international law 20, no. 1 (2009): 59-72, 62 and 64, doi: 10.1093/ejil/chp004. https://www.researchgate.net/deref/http%3a%2f%2fdx.doi.org%2f10.1162%2f002081800551280 https://doi.org/10.1093/jel/eqw015 strengthening global governance: indonesia’s court and the … ary aprianto 8 climate change issues.27 judicial institutions can enforce the law as well as challenge the state and large emitters. judicial institutions thereupon play a strategic role in promoting wider policy change, to be consistent with global goals.28 following this logic, the willingness of indonesian judges to refer to international law is important. it is even more essential if the judges cite treaties that have become part of national law in the reasoning of their decisions. quoting justice i dewa gede palguna, in his dissenting opinion in truth and reconciliation commission case before the constitutional court, international human rights instruments that have become part of national law imply their coherence with the national constitution. thus, applying those instruments at the domestic level is inherently applying indonesia’s national law. his argument can be applied in the forest fire case, particularly on applying relevant treaties to which indonesia has become a party. sloss and van alstine argue that domestic court may apply international law either through a silent application (applying domestic rules that derived from international law without mentioning international sources), through an indirect application (where courts apply international law to help interpret domestic rules), or direct application (the courts apply international law directly as a rule for decision).29 andré nollkaemper then explains that domestic courts choose to employ an indirect application of international law if treaty provision cannot be invoked directly because it does not grant individual rights, or it would conflict with national law. in the netherlands, which is traditionally a monist country, an indirect application allows the court to make a conciliatory interpretation and so prevent it from deviating from the state’s international obligations.30 in a dualist state, canada, for example, an unimplemented treaty may have indirect influence where the court interprets national law in conformity with international law and the state’s treaty obligation.31 furthermore, certain treaties have stressed the role of domestic court in ensuring state party compliance. the human rights committee, a treaty body under iccpr, in its general comment no. 31 paragraph 4, asserts that obligations on iccpr bind state party as a whole. therefore, all branches of the state government (executive, judicial and legislative), at all levels (national and local) are in the position to engage the responsibility of the state party. in paragraph 15, the committee rules that, in addition to directly applying it, the court may also apply national law within the interpretation of the covenant.32 the views of the scholars above and “expectation” from certain treaties offer a more practical application of treaty in the domestic sector, away from the monism – dualism discourse. despite this ‘green light’ for its application, whether domestic court will refer to treaty remains the policy of choice. as was pointed out by sharon weill, the court may find that international law is not applicable, either because it conflicts with domestic norm or because domestic norm has incorporated international law.33 we may also find in other scenarios that 27 joana setzer and michal nachmany, “national governance: the state’s role in steering polycentric action,” governing climate change: polycentricity in action?, 1st ed. (cambridge: cambridge university press, n.d.), 48–49, 51–52, doi: 10.1017/9781108284646.004. 28 ibid., 56–57. 29 david sloss and michael van alstine, “international law in domestic courts,” book chapter santa clara law digital commons, september 2015, 43; david sloss, treaty enforcement in domestic courts: a comparative analysis, in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. (new york: cambridge university press, n.d.), 7, 13. 30 andré nollkaemper, “the netherlands,” in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. (new york: cambridge university press, 2009), 348–50. 31 gib van ert, “canada,” in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. (new york: cambridge university press, 2009), 172, 188. 32https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=8&doctypei d=11, accessed on march 29, 2004. 33 sharon weill, "the role of national courts in applying international humanitarian law: from apology to judicial activism", ph.d. diss., the university of geneva, (2012), 59. https://www.researchgate.net/deref/http%3a%2f%2fdx.doi.org%2f10.1017%2f9781108284646.004 lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 9 the court believes that domestic law is sufficient to deal with the case, the court does not have sufficient knowledge on international law, or the court even considers that international law is not applicable at all. the above possibilities can be explained by what several indonesian scholars have found in their research. gede marhaendra wija atmaja et all and kama soekarno revealed that indonesian judges utilized international law to help deepen their insight of national law, support their legal thoughts or take benefit of the moral authority carries by international law.34 ninon melatyugra also spoke of a similar intention. these perspectives imply that judges will not find it necessary to refer to international law if they believe that national law and their understanding of it is already solid. similarly, domestic actors who bring a case to the court will not bother to refer to indonesia’s international responsibilities if they are confident that national law is sufficient to advance the case. as a reference, when deliberating the law on truth and reconciliation commission case, the court stressed that the review of the law must be based first on pancasila (the state's idea) and the constitution, which has incorporated various international human rights principles. from then on, the court will look at various international human rights materials.35 this pronouncement signaled the court's confidence in the conformity of indonesia’s constitution with international law,36 and paved the way for a silent application, as pointed out by sloss and van alstine. despite the various thought and convictions, it must be realized that, upon the condition that they operate independently, the court retains the authority to oversee the works of government (executive branch) and ensure that they remain in line with national law and international law. as demonstrated in the law on truth and reconciliation commission case, the court's pronouncement is in line with the constitution and conformity with international human rights law. the court ruled that the law in question violates the constitution and international law. this is because the law regulated that remedy could only be delivered following the testimony of perpetrators, their regret, and amnesty from the president, technically, the court was guided by the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law. this document contains several relevant principles, such as to promptly, effectively, and partially conduct an investigation on the alleged violation of human rights, and to ensure the right of victims to remedy and access to justice. the court argued that this document incorporates universal customs and practices, intended to promote justice.37 from the larger perspective, this court pronouncement is in line with the global spirit to enhance human rights promotion and protection, and to assert the role of state in protecting the rights of its citizens. a similar sentiment applies to the papua internet case. the court highlighted that the internet is a medium for freedom of expression and for exercising other rights, such as to seek information, to education, to gain benefits from science, to employment, and so on. as those 34 atmaja et al., “sikap mahkamah konstitusi mengenai keberlakuan perjanjian internasional dalam hubungannya dengan hukum nasional,” jurnal magister hukum udayana 7, no. 3 (2018): 329-342, 340, doi: 10.24843/jmhu.2018.v07.i03.p05; sukarno, “penerapan perjanjian internasional di pengadilan nasional indonesia,” padjajaran jurnal ilmu hukum 3, no. 3 (2016): 587-608, 595, doi: 10.22304/pjih.v3.n3.a8. 35 truth and reconciliation commission case, no. 006/puu-iv/2006 (constitutional court of indonesia december 4, 2006), 120. 36 bagir manan and susi dwi harijanti, “konstitusi dan hak asasi manusia,” padjadjaran journal of law 3, no. 3 (2016): 448–67, doi: 10.22304/pjih.v3.n3.a1; saldi isra, “peran mahkamah konstitusi dalam penguatan hak asasi manusia di indonesia,” jurnal konstitusi 11, no. 3 (2016): 409– 27, doi: 10.31078/jk%x. 37 truth and reconciliation commission case at 122. https://doi.org/10.24843/jmhu.2018.v07.i03.p05 strengthening global governance: indonesia’s court and the … ary aprianto 10 rights are protected in both international and national law, internet restriction must be done proportionally only to harmful materials. 3. the implications of the central kalimantan forest fire case to global governance the forest fire case is far from being relevant only for indonesia’s national human rights development. to begin with, the impacts of the fire were also felt in indonesia’s neighboring countries, thus calling into question indonesia’s compliance with the asean agreement on transboundary haze pollution. the case also has global implications. deforestation, due to forest fire or illegal logging, tremendously impacts every life on earth. researchers have suggested that deforestation reduces rainfall. trees absorb water from land and rainfall, and release water vapor into the atmosphere. water vapor accumulates, turn into clouds, and then create rainfall. researches have also suggested that air that passes over extensive vegetation produces twice as much rain as air that passes over land with less vegetation. forests also influence local and global temperature. deforestation releases carbon dioxide that makes the earth dryer and warmer.38 during the court hearing, a government witness confirmed that fire in peatland contributes to global warming.39 in 2013, the intergovernmental panel on climate change (ipcc) issued a report on climate change 2013, asserting, among others, its confidence that human activity has been the dominant cause of climate change. as has been presented elsewhere, climate change impacts are devastating and irreversible, such as rising sea levels, the disappearance of low-lying coastal areas and small islands, habitat loss for several organisms, and the spread of certain diseases.40 climate change is also responsible for the increasingly frequent and violent natural disasters. those effects have led several scientists to believe that climate change poses an existential threat to human civilization.41 precisely upon those reasons, ecological destruction and its impact on global warming and climate change have long been considered as deserving the effort of the international community. accordingly, the forest fire case and its judgments contribute to assessing indonesia’s actions whether they strengthen or weaken global governance. indonesia is a party to various international instruments on the environment and climate change, most notably un framework convention on climate change / unfccc (ratification as of august 23, 1994), convention on biological diversity / cbd (ratification as of august 23, 1994), kyoto protocol (ratification as on december 3, 2004) and paris agreement (ratification as on october 31, 2016). all those conventions obligate state parties to protect the environment environment and biological diversity and make substantial efforts to reduce greenhouse gas that are harmful to the climate system. in other words, the forest fire that had been occurring for quite a long time (from 1997 until the time the case is brought to the court) was actually against indonesia’s international responsibilities. accordingly, despite the judgment that was solely based on national law, that is on the failure to prevent and respond to forest destruction as mandated by law no. 18/2013 on 38 fred pearce, “rivers in the sky: how deforestation is affecting global water cycles,” yale e360, accessed august 15, 2020, https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change; david ellison and cindy e. morris, “trees, forests and water: cool insights for a hot world | elsevier enhanced reader,” global environmental change 43 (2017): 51–61, doi: 10.1016/j.gloenvcha.2017.01.002. 39 central kalimantan forest fire case, palangkaraya district court march 22, 2017, at 147. 40 myles r. allen, “special report: global warming of 1.5 degree c summary for policy makers,” the intergovernmental panel on climate change, accessed july 7, 2020, https://www.ipcc.ch/sr15/chapter/spm/. 41 http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency. accessed on august 29, 2019; david spratt and ian dunlop, “existential climate-related security risk: a scenario approach” (melbourne, 2019). lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 11 preventing and combatting forest destruction, the court was correcting the implementation of indonesia’s international responsibility. in this context, the judges’ reference to the rio declaration on environment and development made sense. the judges believed that several principles in the declaration were relevant to the case, such as sovereignty and responsibility of state, the equitable needs of current and future generations, and the integrality of environment protection in the development process. the judges specifically highlighted the principle of intergenerational sustainability. they argued that nature conservation is important to ensure that the future generation will be able to enjoy natural resources in good quality and quantity. the judges also suggested that this principle should become the foundation for the development of national and international environmental law.42 the judgment did not only question indonesia’s compliance with international law but also question our responsibility in the attainment of global public goods (in this case, a well-protected environment and ecosystem) and reduce the flow of global public “bad” (in this case, environmental destruction and greenhouse gas emission) the intention to achieve or ensure conformity of action with indonesia’s international responsibility is a necessary element in strengthening global environmental governance. the court, individual plaintiffs, and other actors such as the national human rights commission (whose view on the impacts of forest fire to people’s human rights was included on the plaintiffs’ list of evidence) have all acted within their responsibility, either separately or in collaboration with others. as martin janicke argued, to achieve common goals, each actor must understand its responsibilities and is willing to act within its own opportunities and challenges. he calls it multi-level climate governance, which draws its strength from the presence of multiple actors (government, business, ngos, individuals) at various levels of governance – global, regional, national, provincial, city, local community, and individuals.43 the case also fits into elinor ostrom’s conviction on a polycentric approach to global governance. she stressed among others that governance should not only come from the international level. instead, several initiatives may well emerge from the bottom level, such as from non-state actors.44 both polycentric and multi-level climate governance approaches reaffirm the underlying importance of harmonization of action, interconnectedness, and mutual engagement among different actors at different governance levels. supporting their argument on the human rights violations, the plaintiffs pointed out on indonesia’s international responsibilities under the icescr and the un guiding principles on business and human rights. they also stressed that business entities used fire in clearing the land, the result of which was the widespread of forest and land fire. additionally, it must be understood that globalization can be exploited by groups willing to advance their interests at the expense of others. benvenisti argued that in this regard, judges look upon international law to strengthen and complement domestic environmental regulation. he sees the judges as more of a national actor rather than an international agent. their primary motivation is more to uphold national interests, rather than to support global governance.45 his argument echoes indonesia's challenges, where the government has been accused of prioritizing 42 central kalimantan forest fire case, palangkaraya district court march 22, 2017, at 187. 43 martin janicke, "the multi-level system of global climate governance – the model and its current state," environmental policy and governance 27, no. 2 (2017): 108–21, doi: 10.1002/eet.1747. 44 elinor ostrom, “a polycentric approach for coping with climate change,” world bank policy research working paper 5095, (2009); andrew jordan and dave huitema, governing climate change polycentrically: setting the scene, governing climate change: polycentricity in action?, 1st ed. (cambridge: cambridge university press, 2018), 3-4, doi:10.1017/9781108284646.002. 45 eyal benvenisti, “reclaiming democracy: the strategic uses of foreign and international law by national courts,” american journal of international law 102, no. 2 (2008): 241-274, doi: 10.2307/30034538. strengthening global governance: indonesia’s court and the … ary aprianto 12 business and investment at the expense of sustainable development.46 to put this conviction into context, forest watch indonesia once reported that more than 20 million hectares of natural forests in indonesia were lost between 2000-2017. the main reasons behind it were investment and forest concession. the organization also found that the loss of forests correlated with the increase in weather temperature in a particular area.47 the plaintiffs argued that protecting human rights, in this case, the right to a healthy environment and providing a remedy for breach, is in conformity with indonesia’s international responsibilities. both iccpr and the un guiding principles were utilized to defend their argument that violation by business entities triggered the responsibilities of the government to protect people’s rights and to provide remedy. by accepting the plaintiffs’ argument, the court has essentially declared the failure of the government in performing its environment and human rights responsibilities. as setzer and nachmany have observed, the judicial activity of the court serves as a key component of state’s role in the polycentric global governance. here the court functions as an enforcer of the law, a challenger to state’s inadequate action, and a promoter of national policy reform.48 along this argument, the forest fire judgment is essential in encouraging indonesia to act and create policy in conformity with its international climate obligations. this can be done by among others complying with the court’s decision by issuing necessary implementing regulations to the law on the environment protection, such as on the criteria for environmental degradation, environmental risk assessment, and economic instrument for environment management. the government is also obligated to ensure effective law enforcement against perpetrators of forest fire and to create a roadmap for preventing and combating forest fire. a quite similar argument to that of setzer and nachmany can be referred to anne-marie slaughter and william burke-white. they highlighted that international law can help national institutions in enhancing the capacity and effectiveness of domestic institutions; supporting domestic groups to force state’s compliance with international obligations; and compelling domestic action to respond to global threats.49 when this article was drafted, no information can be found on the realization of the governments’ duties as decided by the court. nonetheless, it is expected that the government can act promptly to implement the court’s orders. if the court orders are well executed, indonesia may have better regulations to prevent forest fire and land destruction, which will help it to prevent further greenhouse gas emission emanating from its territory. finally, the cases as well as the courts’ actions towards them may well represent a way for indonesia to internalize treaty norms and strengthen its treaties’ compliance. a good reference to this idea is the transnational legal process, as harold koh suggested to explain states’ compliance with treaties. he argued that state’s interaction with a treaty system and other international actors encourage it to internalize the treaty norms into the domestic system. this whole process helps develop and strengthen the sense of compliance with international law. this internalization goes through several mutually-reinforcing processes, including through judicial internalization, where the court hears a dispute and invokes international law norms 46 wahana lingkungan hidup indonesia, tinjauan lingkungan hidup 2020: menabur investasi, menuai krisis multidimensi, annual report (jakarta: wahana lingkungan hidup indonesia, 2020). 47 forest watch indonesia, angka deforestasi sebagai ‘alarm’ memburuknya hutan indonesia (jakarta: forest watch indonesia, 2019), http://fwi.or.id/wp-content/uploads/2019/10/fs_deforestasi_fwi_small.pdf. 48 setzer and nachmany, op.cit., 56–57. 49 anne-marie slaughter and william burke-white, “the future of international law is domestic (or, the european way of law),” harvard international law journal 47, no. 2 (2006): 327-352, 330&333; see also david sloss, loc.cit. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 13 into its judgment.50 as was discussed earlier, conformity between a state national policy and its international responsibilities does strengthen global governance, thereby positioning the court as one agent of internalization. 4. the need to increase awareness of international law having described the domestic court's role in strengthening global governance and the international implications of the forest fire case, there remain several notes for further reflection. first, the plaintiffs and judges did not directly rely on international law in their argument. relevant treaties and soft law were instead utilized to support their argument. icescr and the un guiding principles were used to support the plaintiffs’ argument on the government's responsibilities to protect citizens’ human rights and provide a remedy in the event of human rights violations. the judges quoted the rio declaration to support their thinking on the government’s duty to observe the principle of sustainable development (indirect application of international law). thereby the judgment was formally based on national law, but the national law was interpreted accordingly so that the outcome was consistent with international law.51 this indirect application was perhaps because the plaintiffs and judges found that national law was already sufficient. the amended national constitution has absorbed plenty of human rights principles, including the right to a decent and healthy environment as enshrined in the universal declaration of human rights. accordingly, referring to the constitution may indicate a silent application (or a dualist approach in the monism and dualism discourse). the same is true for the law on human rights and law on the environment. as a reference, based on icescr, indonesia must recognize the right of everyone to enjoy the highest attainable standard of physical and mental health. to realize that right, a state party shall take necessary steps, as detailed in article 12, including improving environmental hygiene, and preventing and controlling diseases. this article should be read together with article 7 paragraph 2 of law no. 39/1999 on human rights, which states that international human rights instruments that have been accepted by indonesia become the responsibility of the government. icescr also provides other relevant bases to support the plaintiffs’ argument. in general comment no. 24, the committee on economic, social and cultural rights (a treaty body under icescr) reaffirms state party responsibilities in business activities by privatelyowned or state-owned companies. some of the responsibilities are in ensuring respect, promotion, and fulfillment of human rights during business activity, including in ensuring access to justice and remedy if violations occur.52 accordingly, it is actually sufficient to directly use icescr on the case. second, even if they prefer to apply international law indirectly, other instruments would have better represented the thoughts of the judges. the rio declaration was more than 20 years old when the judges deliberated the case. the judges could have referred to the 2030 agenda for sustainable development, for example, which was adopted in 2015. it contains among others the commitment to protect our nature from degradation for the benefits of both present and future generations. goal 15 on land, forest, and biodiversity can also be highlighted in the case. 50 harold hongju koh, “the 1994 roscoe pound lecture: transnational legal process,” nebraska law review 75, no. 1 (1996): 199–205; harold koh, “the 1998 frankel lecture: bringing international law home,” houston law review 35 (1998): 626–627, 643. 51 nollkaemper, op.cit., 348. 52https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypei d=11, accessed on august 10, 2017. strengthening global governance: indonesia’s court and the … ary aprianto 14 another possibility is that indonesia’s compliance with treaties or possible impacts of indonesia’s actions to global governance have not become parts of the judges’ consideration. as was earlier discussed, judges believe that international law materials, notably those that bind indonesia, have certain moral values that cannot be easily dismissed. non-compliance, the judges conclude, will hurt indonesia’s international standing.53 in short, the judges focus their attention on delivering justice and preserving indonesia’s credibility, not really on strengthening global governance. that attitude is not regrettable. as they are sworn to uphold the constitution, it is reasonable if judges act more as a national actor rather than an actor of international order, as benvenisti observed. third, a more widespread consideration of international law, or even a direct application of treaties that bind indonesia, is preferable to strengthen global governance and reasserting indonesia’s international obligations. in the papua internet restriction case, the court was very close to directly apply iccpr and its general comment no. 34, alongside the application of law no. 19/2016 on the amendment to the law no. 11/2008 on information and electronic transaction. the court thought that the restriction amounted to the derogation of rights, as stipulated in article 4 paragraph 1 of iccpr, which can only take place in public emergency. accordingly, the court turned on to the government regulation in lieu of law no. 23/1959 on emergency situation and discovered that the restriction was not based on the official announcement of an emergency situation, such as what is required by the regulation. yet to realize that suggestion, a sufficient understanding of the status of international law in indonesia must be achieved. while indonesia’s domestic court has shown that international law is a reliable source of law (at least, materially), some believe otherwise. aminoto and agustina merdekawati revealed that there has been a tendency in indonesia to see the law as merely those that are described in law no. 12/2011 on the drafting of regulations. as stated, the regulations that apply in indonesia consist of (in descending order of rank) the constitution, decree of the people consultative assembly, law, government regulation, presidential regulation, provincial regulation, and municipal regulation. the consequence is that international law is not considered as a proper source of law.54 this attitude is certainly a hindrance for the application of international in the domestic court, even for an indirect one. further, even if a treaty has been ratified or acceded to by indonesia, there remains confusion as to whether the treaty is ready for implementation. this confusion emerged from the lack of clarity of whether the treaty is considered as self-executing or not.55 c. conclusion this article has shown that the implications of forest fire case were not only within indonesia’s national boundaries. either the case was only about violations of human rights. forest and land fire that have occurred intermittently were actually in contravention of various treaties on haze, environment, and climate, to which indonesia is a party, as well as of indonesia’s commitment to sustainability. hence the case and its judgment have international implications as well. despite the judgment that was based on national law, the forest fire case exposed the court’s indirect application of international law. as a consequence, the court’s judgment supports the realization of indonesia’s international responsibility on the global climate governance. 53 agusman, op.cit., 22; sukarno, op.cit., 595, 597. 54 aminoto and merdekawati, “prospek penempatan perjanjian internasional yang mengikat indonesia dalam hierarki peraturan perundang-undangan indonesia,” mimbar hukum 27, no. 1 (2015): 82-97, 84, doi: 10.22146/jmh.15912. 55 ibid., 89; damos dumoli agusman, “self executing and non self executing treaties what does it mean?,” indonesian journal of international law 11, no. 3 (2014): 320-344, 344, doi: 10.17304/ijil.vol11.3.501. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 15 it has also been shown that the domestic court’s responsibilities are not only in upholding ‘the primacy’ of national law and ensuring the highest quality of justice in accordance with the constitution. domestic court is also burdened with the task of ensuring respect to international law or, at the very least, treaties that bind the state. this task is not only a matter of state reputation as a law-abiding state but also in attaining what the international community has aspired to. it should also be noted that domestic court is in the position to force other branches of government to make policy change. this role is highly relevant to the success of global governance, and should become an encouragement for indonesian lawyers and judges to acquire adequate knowledge of relevant international law and the specific governance it serves. references a. journal abbott, kenneth w., snidal, duncan. “hard and soft law in international governance,” international organization 54, no. 3, 2000: 421-456, doi: 10.1162/002081800551280. agusman, damos dumoli. 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"the multi-level system of global climate governance – the model and its current state." environmental policy and governance 27, no. 2, 2017: 108–21, doi: 10.1002/eet.1747. kim, rakhyun e. “is global governance fragmented, polycentric, or complex? the state of the art of the network approach.” international studies review 22, no. 4, 2019: 903-931, doi: 10.1093/isr/viz052. manan, bagir, harijanti, susi dwi. “konstitusi dan hak asasi manusia.” padjadjaran journal of law 3, no. 3, 2016: 448–67, doi: /10.22304/pjih.v3.n3.a1. melatyugra, ninon. “mendorong sikap lebih bersahabat terhadap hukum internasional: penerapan hukum internasional oleh pengadilan indonesia.” refleksi hukum 1, no. 2, 2016: 45–60, doi: 10.24246/jrh.2016.v1.i1.p45-60. rajamani, lavanya. “the 2015 paris agreement: interplay between hard, soft and non-obligations.” journal of environmental law 28, no. 2, 2016: 337-358. rauta, umbu., melatyugra, ninon. “hukum internasional sebagai alat interpretasi dalam pengujian 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international law. first edition. oxford: oxford university press, 2001. ert, gib van. “canada.” in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. new york: cambridge university press, 2009. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 1, 2021 e-issn: 2723-2603 17 friedman, thomas. the world is flat. first updated and expanded. new york: picador, 2007. jordan, andrew, and dave huitema. governing climate change polycentrically: setting the scene. in governing climate change: polycentricity in action?, 1st ed., cambridge: cambridge university press, 2018. nollkaemper, andré. “the netherlands.” in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. new york: cambridge university press, 2009. ostrom, elinor. “a polycentric approach for coping with climate change,” 2009. world bank policy research working paper 5095. setzer, joana., nachmany, michal. national governance: the state’s role in steering polycentric action. in governing climate change: polycentricity in action?, 1st ed., cambridge: cambridge university press, n.d. sharon weill, “the role of national courts in applying international humanitarian law: from apology to judicial activism”, ph.d. diss., university of geneva, 2012 sloss, david. “treaty enforcement in domestic courts: a comparative analysis.” in the role of domestic courts in treaty enforcement: a comparative study, 1st ed. new york: cambridge university press, n.d. sloss, david., alstine, michael van. “international law in domestic courts,” book chapter santa clara law digital commons, september 2015. soekanto, soerjono., mamudji, sri. penelitian hukum normatif: suatu tinjauan singkat jakarta: rajawali press, 2009. vereinte nationen, ed. global governance and global rules for development in the post-2015 era: policy note. united nations publication. new york, ny: united nations, 2014. wahana lingkungan hidup indonesia. “tinjauan lingkungan hidup 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http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency, accessed on august 29, 2019. https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climatechange, accessed august 15, 2020. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyi d=8&doctypeid=11, accessed on march 29, 2004. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyi http://fwi.or.id/wp-content/uploads/2019/10/fs_deforestasi_fwi_small.pdf http://fwi.or.id/wp-content/uploads/2019/10/fs_deforestasi_fwi_small.pdf http://www.unenvironment.org/explore-topics/climate-change/facts-about-climate-emergency https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=8&doctypeid=11 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=8&doctypeid=11 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 strengthening global governance: indonesia’s court and the … ary aprianto 18 d=9&doctypeid=11, accessed on august 10, 2017. https://www.gdrc.org/u-gov/global-neighbourhood/, accessed may 6, 2020. https://www.project-syndicate.org/commentary/paris-agreement-model-for-globalgovernance-by-anne-marie-slaughter-2015-12, december 28, 2015. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/tbsearch.aspx?lang=en&treatyid=9&doctypeid=11 https://www.gdrc.org/u-gov/global-neighbourhood/ https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12 https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12 79 saisir l’action de la cour penale internationale par sa complementarite seize the action of the international criminal court by its complementarity ovide e. manzanga kpanya université fédérale de kazan, russie, email: ovidemanzanga@gmail.com soumis: 11 septembre 2019; commentaire envoyé le: 14 octobre 2019; accepté: 31 octobre 2019 informations sur l'article résumé mots clés: cpi, complémentarité, responsabilisation. keywords: cpi, complementarity, accountability. doi: 10.25041/lajil.v1i2.2026 l’une de plus grandes difficultés de la cpi est l’absence d’une acception universelle et en plus du constant procès d’ingérence aux affaires intérieures qu’on lui fait. on constate de plus en plus l’exacerbation de critiques politiques qui militent, parfois expressément de manière véhémente, pour la cessation de ses activités que pour l’optimisation de son fonctionnement. une situation qui entretient le flou dans le chef de la communauté internationale en matière de lutte contre les crimes internationaux. pourtant, si l’on veut réellement combattre les crimes les plus graves qui menacent la paix et la sécurité de l’humanité par une judiciarisation des solutions, la complémentarité de la cour qui est considérée par ces etats comme violatrice de la souveraineté, devrait plutôt être observée comme un motif légitime conventionnel qui incite à perfectionner le système interne et d’agir effectivement au niveau national. les etats doivent combiner à la fois un sentiment de conserver leur prestige étatique, contenu dans le principe de la souveraineté, et la nécessité de débrider leurs systèmes nationaux qui ont, depuis le fond des temps, fardé les crimes qui leur profitent. abstarct one of the most significant difficulties of the icc is the absence of a universal acceptance and, in addition to the constant process of interference in internal affairs in which it is made. we are increasingly seeing the worsening of political critics who advocate, sometimes expressly vehemently, to quit its activities rather than optimizing its functioning. this situation maintains the vagueness of the international community in the fight against transnational crimes. however, suppose we want to fight the most serious crimes that threaten the peace and security of humanity by judicializing solutions. in that case, the complementarity of the court, which is considered by these states to violate sovereignty, should instead be observed as a legitimate conventional motive that incites to improve the internal system and act effectively at the national level. states must combine both a feeling of preserving their state prestige, contained in the principle of sovereignty and the need to unbridle their national volume 1 issue 2, 2019: pp. 79-94. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil https://doi.org/10.25041/lajil.v1i2.2026 saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 80 systems that have covered up the crimes that benefit them since the beginning of time. a. introduction la conséquence juridique de l’existence de la cpi est le dédoublement juridictionnel dans le but de combattre à tous les niveaux certains de crimes les plus graves, dont les préjudices transcendent les frontières étatiques, dans lesquelles ils se commettent. cependant, les deux niveaux d’instance ne peuvent agir concomitamment, évitant ainsi juridiquement, une situation permanente de litispendance, et politiquement, un conflit inévitable et persistant entre le statut de rome et le principe de la souveraineté des etats. pour y remédier, le principe de la complémentarité a été jugé bien seyant, exprimant tout à fait le désir des états de contrôler leur système de droit pénal dans leurs propres pays, en particulier pour les crimes graves et ayant un contexte ou des conséquences politiques.1 ce souci débouchant principalement sur les considérations souverainistes, inextricables au positionnement juridico-politique des etats, ne saurait néanmoins occulter l’avancée significative dans le mythe de la confiance qui doit jalonner l’idée de créer une cour pénale internationale. puisque dans cette reconfiguration de la souveraineté,2 ces etats ont exprimé leur volonté encourageable3 de juridictionnaliser la réaction aux atrocités, dont la moindre justiciabilité doit, dorénavant, être exploitée. en effet, il est important de signaler d’emblée, que ce caractère complémentaire de la cour a d’abord été au centre de discussions de la commission chargée d’élaborer le statut,4 avant d’intéresser ensuite, vivement la doctrine, visiblement à cause de son caractère sui generis. les analyses doctrinales qui ont consistées à dégager sa quintessence tendent toutes à la conclusion convergente, celle d’une cour qui n’intervient qu’en cas d’absence de poursuites nationales, c’est-à-dire, ce n’est que lorsque l’etat concerné n’a pas la capacité ou la volonté de le faire, que la cour peut alors être compétente.5 dans cette optique, la cour pénale internationale s’observe comme un second niveau de souveraineté, qui redouble et englobe les souverainetés étatiques, lesquelles ne cessent pas pour autant d’exister, cela, dans un domaine régalien par excellence, celui de la justice pénale. 6 par voie de conséquence, en conservant son pouvoir, l’etat demeure incontestablement, le seul premier sujet du droit international compétent pour engager les poursuites pénales à l’encontre de tous ceux qui transgressent sa loi pénale. grosso modo, l’explication de la portée systémique8 de ce principe, c’està-dire ses aspects classique et positif, parait peu ou prou claire sur le rôle inéluctable de l’etat en cette matière. pourtant dans la pratique, il existe des sérieux défis auxquels cette juridiction internationale doit courageusement affronter. d’une part, il s’agit de la méfiance à laquelle elle se heurte, venant de 1 paul seils, guide de la complémentarité : introduction quant au rôle des juridictions nationales et de la cour pénale internationale dans la poursuite des crimes internationaux (ictj: meredith barges, 2016), 6. 2 philippe currat, “hans kelsen, carl schmitt et la cour penale internationale. quelques reflexions apres la premiere decennie d’exercice de la cour”, afri 14, (2013): 497-525, 498. 3 la cpi est l’une de belles choses qui soient arrivées à la planète dans le domaine de réglementation des relations internationales. la résolution de juridictionnaliser les conflits généralement armés, détrône en réalité la guerre comme autrefois, moyen principal de résolution de ce conflits. “comme indiqué dans la littérature scientifique, l'idée de créer la cour pénale internationale incarnait les aspirations séculaires de l'humanité à un ordre mondial juste, impossible sans la punissabilité de crimes graves qui portent atteinte aux fondements de la civilisation humaine “. m.f. khamidova, “creation d'une cour penale internationale et questions juridiques de responsabilite pour les crimes internationaux”, bulletin de l'université d'état de saint-pétersbourg 3, no. 8 (2017): 337348, 337. 4 alfiya. r kayumova, la juridiction pénale en droit international (kazan: centre d’innovation technologique, 2016) 313. v. report of the ad hoc committee on the establishement of an international criminal court// document de l’onu du 06/09/1995. 5 voir les travaux de la conférence de révision du statut de rome, tenue à kampala, ouganda, juin 2010, complémentarité, rc/11, annexe v(c), résumé officieux des points focaux, et autres documents liés, disponible sur le site internet www.icccpi.int/iccdocs/asp_docs/rc2010/rc-11-annex.v.c-fra.pdf. cf. également les rapports du bureau et du secrétariat de l’assemblée des etats parties sur la complémentarité, présentés à la 11ème session de l’assemblée, la haye, pays-bas, 1422 nov. 2011, respectivement icc-asp/11/24 et 25. 6 philippe currat, op.cit., 2. 8 du principe de la complémentarité on constate deux aspects : le premier est classique basé sur la menace d’agir en lieu et place des juridictions nationales, et le second est positif en ce qu’il permet d’établir une certaine interaction entre la cour pénale internationale et les systèmes nationaux. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 81 plusieurs membres de la communauté internationale9 parmi lesquels, on retrouve particulièrement les etats-unis, la chine et la russie, qui y sont par ailleurs membres du conseil de sécurité des nations unies,10 constituant ipso facto, une entrave redoutable dans l’acceptation universelle de cette juridiction. de fait, refusant initialement de reconnaitre cette juridiction, ces etats ont, respectivement ou de manière solidaire, soulevés certaines objections notamment, contre la complémentarité de la cour, qu’ils jugent violatrice de la souveraineté nationale.11 certains d’ailleurs, les etats-unis en l’occurrence, n’hésitent pas de s’attaquer frontalement à la cour, la qualifiant d’incapable et traitant ses juges de criminels, les menaçant de saisir leurs avoirs et de leur interdire l’accès aux usa.12 des propos qui surviennent en guise de protestation contre la décision du procureur de la cour, d’ouvrir des enquêtes préliminaires sur les possibles crimes commis depuis le 1er mai 2003 en république islamique d'afghanistan.13 d’autre part, elle s’achoppe à un sentiment de défiance, que l’on retrouve chez certains etatsparties au statut de rome, dont les ressortissants14 subissent ou sont menacé de subir l’action de la cour. mais aussi, les etats eux-mêmes qui, paradoxalement, voient d’un mauvais œil les demandes de cette cour concernant l’exécution des obligations contenues dans le chapitre xi du statut. a titre d’illustrations, la république des philippines qui pratiquait sa rude politique contre la drogue15, avait croisait sur son chemin le procureur de la cpi, qui avait dénoncé une politique plutôt meurtrière soldée par des exécutions extra-judiciaires, susceptibles d’intéresser les enquêteurs de la cour.16 n’ayant pas apprécié cette initiative, en 2018, le président a révoqué la ratification de son pays du statut de rome17. mais il y a aussi, les etats africains qui forment le groupe le plus important et, sont également en première ligne vers le portillon de sortie. en effet, la prouvabilité de leurs velléités individuelles n’est plus à démontrer, partant de la constatation des cas du burundi,18 de la gambie et 9 la communauté internationale est pris ici au sens de h. kelsen qui soutient qu’il n’y a de communauté qu’en tant qu’elle est constituée juridiquement. la communauté internationale est celle définie par l’ordre juridique international. le pacte de la société des nations est bien le fondateur de la communauté juridique internationale, comme le sera ensuite la charte des nations unies. philippe currat, op.cit., 503. 10 d’une part, en vertu de l’article 13 (b) du statut, le conseil de sécurité peut, agissant en vertu du chapitre vii de la charte des nations unies, déférer au procureur une situation dans laquelle un ou plusieurs de ces crimes paraissent avoir été commis. d’autre part, cet organe agit par des résolutions ayant théoriquement force obligatoires issues du vote, alors que les membres permanents du conseil disposent chacun d’un droit de veto, pouvant bloquer toute initiative de déférer une situation au procureur comme prévu. 11 steven w. becker, “les objections des grandes nations a la cour penal internationale”, eres “revue internationale de droit pénal” 81, no. 1 (2010): 47-64, 49. 12 en 2018, la procureure de la cpi fatou bensouda avait annoncé aux médias en novembre qu'elle allait demander aux juges l'autorisation d'ouvrir une enquête sur des crimes de guerre présumés commis dans le cadre du conflit afghan, notamment par l'armée américaine. john bolton, conseiller à la sécurité nationale de la maison-blanche, n’a pas loupé l’occasion de lui répondre au nom du président trump en ces termes: “nous allons interdire à ces juges et procureurs l'entrée aux etats-unis. nous allons prendre des sanctions contre leurs avoirs dans le système financier américain et nous allons engager des poursuites contre eux dans notre système judiciaire”. “nous n'allons pas coopérer avec la cpi, nous n'allons pas lui fournir d'assistance, nous n'allons pas adhérer à la cpi. nous allons laisser la cpi mourir de sa belle mort» car «pour nous, la cpi est déjà morte”. voir l’article dans le magazine le temps, publié lundi 10 septembre 2018 à 19:51, modifié lundi 10 septembre 2018 à 19:54. 13 déclaration du 20 novembre 2017, le procureur de la cour pénale internationale, fatou bensouda, demande aux juges l’autorisation d’ouvrir une enquête concernant la situation en république islamique d’afghanistan. https://www.icccpi.int/about?ln=fr 14 conformément à l’article premier du statut de rome, la cour comme juridiction internationale, ne juge pas les etats mais plutôt leurs ressortissants. lire aussi orentlicher, diane f, “politique par d'autres moyens: le droit de la cour penale internationale”, cornell international law journal 32, no. 3 (1999). 15 l’équipe de pays des nations unies, se référant à des recommandations ayant reçu l’aval des philippines, a indiqué que la campagne contre la drogue menée par le gouvernement s’était soldée par l’exécution de prétendus “toxicomanes et revendeurs de drogue”. v. rapport du haut-commissariat des nations unies aux droits de l’homme du conseil des droits de l’homme groupe de travail sur l’examen périodique universel, vingt-septième session 1 er -12 mai 2017, compilation concernant les philippines, 3. 16 déclaration du procureur de la cour pénale internationale, mme fatou bensouda, à propos de l’ouverture d’un examen préliminaire dans le cadre des situations aux philippines et au venezuela, du 8 february 2018, bureau du procureur de la cpi : https://www.icc-cpi.int/pages/item.aspx?name=180208-otp-stat&ln=fr 17 la république des philippines a déposé, le 17 mars 2018, la notification écrite de son retrait du statut de rome, le traité fondateur de la cour, auprès du secrétaire général des nations unies en tant que dépositaire du statut. référencec.n.138.2018.treaties-xviii.10//https://treaties.un.org/doc/publication/cn/2018/cn.138.2018-eng.pdf 18 le 12 octobre 2016, le parlement de la république du burundi a adopté une loi en faveur du retrait de son pays du statut de rome (statut), traité fondateur de la cour pénale internationale (cpi). depositary notification saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 82 de de l’afrique du sud19, et tant d’autres etats qui ont menacé de quitter la cour. mais le cas qui parait quelque peu atypique, est celui d’une action collective portée par l’union africaine, qui, dans l’affaire soudanaise, avait demandé aux etats membres africains de ne pas coopérer avec la cour.20 en outre, dans l’optique de s’en débarrasser, cette principale organisation régionale avait, en 2014, adoptée le protocole de malabo, se rapportant à la création d’une chambre criminelle à la cour africaine des droits de l’homme et des peuples21 chargée de connaitre les affaires pénales africaines. dans tous les cas, toutes ces attaques, critiques, objections ou observations dont les fonds pourraient faire l’objet d’une analyse à part entière, démontrent formellement, la difficulté de l’universalisation de cette cour et surtout, l’incompréhensibilité de son caractère subsidiaire, tout en fulminant son caractère permanent donc, sa stabilité, y compris, sa crédibilité. somme toute, la question subséquente qui traverse l’esprit, est celle de savoir, à quoi sert réellement cette juridiction que l’on désire et décrie à la fois? sans nul doute, une relecture téléologique du principe de la complémentarité serait l’hypothèse la plus plausible afin de mieux rencontrer et décortiquer cette forme de binarité qu’il renferme. pour ce faire, le premier point sera consacré à la responsabilisation de l’etat dans la répression de ces crimes internationaux, laquelle renvoie d’une part, à la priorité qu’ont les juridictions nationales, et d’autre part, à la capabilisation du système judiciaire étatique, au cas où, ceci serait jugé défaillant. le second point se présentera, tel un corollaire du premier, en ce qu’il abordera l’intervention de la cour dans un etat donné, lorsque les conditions statutaires auront suffisamment été constatées. b. discussion 1. la responsabilisation de l’etat dans la répression des crimes internationaux si l’éclosion de cette instance a été provoquée à la suite du constat de la défaillance ou du laxisme permanent des juridictions étatiques, sa complémentarité impliquerait donc une capabilité de ces instances nationales (b), comme condition sine qua non de leur priorité d’agir (a). a. priorisation des juridictions nationales l’article premier en combinaison avec l’avant dernier paragraphe du préambule du statut de rome déterminent pleinement la nature de cette cour, qui, à la différence d’autres juridictions pénales internationales ad hoc, fonde son existence sur sa complémentarité des juridictions pénales nationales.22 cette complémentarité que l’on qualifie de fondamentale, a été l’une des conditions préalables23 de son acceptation par les etats-signataires, s’apercevant alors comme un équilibre ou un compromis entre le respect de la souveraineté et le développement d’une institution judiciaire autonome et indépendante24 sur le plan international. c.n.805.2016.treaties-xviii.10 // united nations treaty collection. url: https://treaties.un.org/doc/publication/cn/2016/cn.805.2016-eng.pdf 19 en novembre 2016, la gambie sous l’ère jameh, avait notifié au secrétaire général de l’onu son retrait de la cpi, alors qu’à l’aube de l’élection d’adama barrow, le nouveau président a décidé d'annuler la décision de retrait du pays du statut de la cour pénale internationale par la gambie, par une lettre officielle envoyée au secrétaire général des nations unies le 10 janvier 2017 le ministre des affaires étrangères, de la coopération internationale et des gambiens à l'étranger. la décision du président sud-africain zuma a depuis été déclarée “inconstitutionnelle” par la haute cour à pretoria depositary notification c.n.862.2016.treaties-xviii.10 // united nations treaty collection. url: https://treaties.un.org/doc/publication/cn/2016/cn.862.2016-eng.pdf 20 conférence de l’union africaine, 13e session ordinaire, syrte, 3 juillet 2009, décision sur le rapport de la réunion des états africains parties au statut de rome de la cour pénale internationale (c.p.i.) — assemblée/au/déc., 245 (xiii) rev.1, § 10. 21 en juin 2014, le protocole portant amendements au protocole portant statut de la cour africaine de justice et des droits de l’homme (ci-après le protocole de malabo) a été adopté par l’union africaine. le protocole de malabo prévoit d’intégrer dans le mandat de la cour africaine de justice et des droits de l’homme (cajdh) une compétence en matière pénale. 22 otto triffterer, commentaire du statut de rome de la cour pénale internationale, observations, notes article par article, 1ère éd., (bruxelles: bruylant, 1999) 59. cité par almoktar ashnan, “le principe de complémentarité entre la cour pénale internationale et la juridiction pénale nationale”, thèse, faculté de droit/droit public, université françois rabelais de tours, (2015), 19 23 svetlana y. korableva, régime de complémentation de la cour pénale internationale: problèmes de mise en œuvre, document version russe en ligne sur : http://www.elibrary.az/docs/jurnal/jrn2017_731.pdf, consulté le 20/01/2019. 24 almoktar ashnan, op.cit., 22. http://www.elibrary.az/docs/jurnal/jrn2017_731.pdf lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 83 faut-il rappeler, qu’insistant sur le fait que la répression de toute criminalité, quelle que soit l’échelle, relève de la mission régalienne de tout etat, qui la remplit conformément à sa législation, le principe de la complémentarité incite les etats à agir eux-mêmes et, adéquatement. il rappelle donc en d’autres mots, cette nécessité selon laquelle, il est du devoir de chaque état de soumettre à sa juridiction criminelle les responsables de crimes internationaux. 25 c’est à la fois un engagement politique et juridique d’un etat, d’un gouvernement de faire régner la justice sur son territoire, et pour y parvenir, les mesures effectives doivent être prises dans le cadre national en vue de réprimer ces crimes, de poursuivre leurs auteurs et d’en prévenir efficacement. on peut mentionner par exemple, le renforcement des cadres normatif et structurel; la disponibilisation du personnel judiciaire capable d’assurer cette tâche délicate; l’élaboration d’une politique pénale adéquate qui martèle sur le caractère prioritaire de la répression de ces crimes, sans ignorer la mise en place d’un système pénitentiaire assurant, en cas de condamnation, l’effectivité de l’exécution de la peine et la perceptibilité de ses effets notamment, dissuasifs. pourtant, cet aspect de la complémentarité de la cour est largement ignoré par une grande majorité de l’opinion publique, qui voit en l’action de cette cour une main noire impérialiste, néocolonialiste, une juridiction contre les etats faibles. certains évoquent un tropisme africain,26 en référence aux nombreuses affaires concernant les africains qui abondent son agenda. concrètement, il s’agit plus d’une critique purement politique que l’on adresse à la cour qui n’est d’ailleurs pas surprenante, lorsqu’on prend en considération le constant rapport de force teinté du souverainisme qui caractérise le droit international, sur lequel, l’influence est indéniable. cependant, abonder dans le même sens, ce serait apprécier incorrectement la notion de la complémentarité du point de vue juridique. puisqu’en effet, ce principe exhorte les etats à affirmer leurs capacité et la volonté de mener les poursuites à l’encontre des personnes qui se rendraient coupables de l’un ou plusieurs de ces crimes prévus à l’article 5 du statut de rome. a défaut de ces prétentions, la cour intervient car, sa complémentarité la rendrait, dans cette hypothèse, garante des procédures et poursuites nationales. il ne s’agit pas, comme le pensent certains auteurs, d’une relation verticale entre les états et la cpi, plaçant cette dernière dans un rôle d’instance judiciaire de dernier recours décidant de la recevabilité ou non d’une affaire.29 car la complémentarité qui nourrit cette juridiction ne saurait renfermer un autre sens que celui de responsabiliser les etats, les encourager à déployer des efforts possibles qui permettent de mettre en place un système répressif à la hauteur de ces infractions. a ce compte-là, il ne peut exister une verticalité dans la relation qui relie la cour aux etats. on y aperçoit par contre, une horizontalité passive, un parallélisme non-concurrentiel qui place néanmoins, les juridictions nationales en priorité d’action, et qui les privilégie en cas de conflit.30 par ailleurs, si du régime de la complémentarité ressortent deux juridictions compétentes, il y a des raisons de croire, que l’existence simultanée d’une instance pénale (internationale) permanente à côté de celle nationale soit de nature à menacer le prestige étatique, puisqu’elle est en quelque sorte, révélatrice et symptomatique des insuffisances et incapacités d’un etat, d’un gouvernement, d’un régime politique à mobiliser les ressources nécessaires pour mettre en place une justice qui assure et rassure la stabilité de sa société. en plus, comme il a été souligné précédemment, la nécessité de cette cour a été fortement ressentie par le constat général d’après lequel, les justices nationales ont toujours fait preuve d’un certain laxisme notoire en matière de crimes internationaux eu égard à leur caractère plus ou moins politique. conséquemment, les etats ont toujours eu tendance, jusqu’à ce jour, à grimer ceux des crimes qui leur profitent. toutefois, il sied de relever aussi, que cette juridiction souffre de la faiblesse du droit international qui est en réalité, une branche juridique largement émaillée de tendances politiques diverses fortement mouvantes. les constantes négociations politiques qui fondent en réalité cette branche du point de vue de sa source principale, présentent un grand inconvénient, qui est la 25 10ème paragraphe du préambule du statut de rome. 26 sara dezalay, “l’afrique contre la cour penale internationale ? élements de sociogenese sur les possibles de la justice internationale”, editions karthala politique africaine 156, no. 2 (2017): 165-182, 168. 29 maxime c.-tousignant, “l'instrumentalisation du principe de complementarite de la cpi: une question d'actualite”, revue québécoise de droit international 25, no. 2 (2012): 73-99, 88. 30 https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25 60aa962ed8b6/143595/030908_policy_paper_fr.pdf., consulté le 30/01/2019. https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 84 succombance du plus faible, de la nation la moins puissante, la moins soutenue,31 car il s’agit d’un rapport de force évidemment défavorable à l’un ou l’autre. ce caractère très poisseux au droit international, épargne très faiblement la cour, qui, lors de l’appréciation de la recevabilité d’une affaire, peut s’exposer à une sorte d’instrumentalisation politique tant sur le plan national32 qu’international.33 néanmoins, comme le souligne bien kelsen, le droit international, comme tout système, ne suppose pas une subordination politique c’est-à-dire, des êtres humains qui appliquent la loi par rapport à ceux qui l’édictent. il est avant tout un dispositif de subordination juridique des êtres humains aux règles légales : non sub homine sed sub lege. 34 a cet effet, s’appuyant sur cette responsabilisation que renferme la complémentarité (comme une norme juridique), l’etat se doit de capabiliser son système judiciaire national en vue de s’abriter juridiquement contre une quelconque intervention qu’il pourrait juger malveillante ou violatrice de sa souveraineté, car dans tous cas, ces crimes devraient être réprimés. b. implication fondamentale de la responsabilisation: capabilisation du système judiciaire national face aux crimes relevant de la compétence de la cour on compte nombreux etats politiquement stables, qui ont des systèmes judiciaires consolidés par leurs stabilités et leur sens profond d’etat de droit. mais il y a aussi d’autres, précisément dans des régions à fortes fluctuations socio-politico-militaires, qui accusent beaucoup de difficultés susceptibles de tétaniser toute action répressive sérieuse. dans ce cas, la responsabilisation de l’etat soumet principalement ces etats à une capabilisation de leurs systèmes judiciaires, parce qu’il serait utopique de prétendre réprimer les crimes d’une telle envergure lorsque la justice, comme organe légitime chargé de la répression, est visiblement défaillante ou inexistante. c’est-à-dire que, ces etats ne doivent pas demeurer dans le statu quo, en se confiant en l’action de la cpi. le faire, ce serait transgresser sans nul doute l’esprit et la lettre du statut de rome, spécialement, en son article premier. d’ailleurs, le fait qu’un grand nombre d’affaires atteignent la cour ne devrait pas constituer un critère d’efficience de la complémentarité35 ni de la cour. l’efficacité de la cpi, c’est l’absence de procès, telle une conséquence du fonctionnement efficace des systèmes judiciaires nationaux.36 en réalité, certains etats agissent dans ce sens, notamment, la libye, qui, après le déboulonnement du régime du colonel mouammar kadhafi, avait consentie beaucoup d’efforts pour restaurer l’etat de droit, et enfin prétendre avoir la capacité de juger ses propres ressortissants. ce qui lui a valu d’ailleurs une ‘’victoire judiciaire’’ sur le procureur de la cpi dans l’affaire abdullah al-senoussi 37 . il y a aussi le cas de la république démocratique du congo, le soixantième 31 on peut illustrer par les cas soudanais et syrien devant le conseil de sécurité. deux situations qui auraient pu subir le même sort, ne l’ont finalement pas été parce que, l’une, protégée par un organe régional dépourvu de toute force ‘’contraignante’’ et l’autre par un etat (la russie) et ses alliés (notamment la chine) possédant un moyen dirimant de toute décision du conseil de sécurité (droit de véto). 32 au niveau interne, les etats qui camouflaient les crimes qui leur profitaient n’ont pas renoncés à leur attitude mais, l’ont enveloppée par la complémentarité. en effet, pour se débarrasser des opposants politiques gênants, certains dirigeants politiques au pouvoir n’hésitent pas à recourir à la cour pénale internationale en vertu de la complémentarité, tel est le cas de la république démocratique du congo, qui plaida la défaillance et l’incapacité du système congolais à l’époque pour saisir la cour avec un espoir non-apparent de mettre en difficulté quelques personnalités politiques qui représentaient un risque pour le pouvoir en place. on peut également citer, le cas de la cote d’ivoire dont seuls gbagbo et blé goudé ont été transféré à scheveningen, alors que les mêmes autorités ont refusé le transfèrement de simon gbagbo, qui a bénéficiée en outre d’une grâce présidentielle après des poursuites internes. 33 sur le plan international, le conseil de sécurité saisit la cour en vertu de l’article…ne manque pas l’occasion d’afficher ses divergences à chaque fois qu’il faut user de ces pouvoirs que lui confère le statut de rome. l’affaire syrienne en est l’exemple concret couvrant les violations graves du dih et des droits de l’homme. 34 grangé, ninon (dir.), ramel, frédéric (dir.), le droit international selon hans kelsen : criminalités, responsabilités, normativités. nouvelle édition [en ligne], (lyon: ens éditions, 2018) (généré le 24 mars 2019). disponible sur internet : <http://books.openedition.org/enseditions/8716>. isbn : 9791036200090. doi : 10.4000/books.enseditions.8716. 35 almoktar ashnan, op.cit., 20. 36 communication relative à certaines questions de politique générale concernant le bureau du procureur. document en ligne sur: https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25 60aa962ed8b6/143595/030908_policy_paper_fr.pdf. (consulté le 30/01/2019) 37 le procureur c. saif al-islam kadhafi et abdullah al-senussi : le 11 octobre 2013, la chambre préliminaire i de la cour pénale internationale (cpi) a décidé que l’affaire concernant abdullah al-senussi faisait l’objet d’une enquête nationale par les autorités libyennes compétentes et que ce pays avait la volonté et était capable de mener véritablement à bien cette enquête. par conséquent, les juges ont conclu que l’affaire était irrecevable devant la cour eu égard au principe de https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 85 etat à ratifier le statut de rome37, ayant permis par là son entrée en vigueur, le premier etat à voir l’un de ses ressortissants traduit devant la cour38, et à ce jour, elle compte le plus grand nombre de ressortissants qui ont été ou sont jugés par devant cette cour. une observation qui ne peut que susciter une certaine curiosité sur la capacité du système judiciaire de cet etat en matière de crimes internationaux. en effet, ces infractions ne sont pas inconnues de la législation congolaise. le texte y relatif remonte bien à l’ordonnance-loi n°72/060 du 25 septembre 1972 portant institution d’un code de justice militaire, qui prévoyait en son chapitre vi du titre ii du livre iii les crimes de guerre et contre l’humanité39. en 2002, quelques mois après l’entrée en vigueur du statut de rome, et dans un contexte de conflits armés accablant le pays, deux nouvelles lois ont vues le jour, se rapportant respectivement, au code pénal militaire40 et au code judiciaire militaire41. ces textes de nature essentiellement militaire, posaient un apparent problème quant à l’aptitude de juridictions militaires à connaitre de ces crimes, au cas où leurs auteurs eurent été des civils42. car, on y voyait visiblement une certaine exclusivité compétencielle conférée aux juridictions militaires43, qui devraient appliquer lesdits textes. une situation qui a en outre, révélée la porosité du système judiciaire congolais face aux enjeux de ces crimes particuliers, et par conséquent la nécessité de relever le défi de l’efficacité et de la pleine compétence dudit système. a cet effet, deux réformes méritent d’être soulevées : la première est celle de 201344 relative à l’organisation judiciaire, qui a le mérite d’attribuer pour la première fois, à une juridiction de droit commun, précisément la cour d’appel, une compétence personnelle élargie afin de connaitre de crimes prévus à l’article 5 du statut de rome. en effet, l’article 91 en son alinéa 2 point 1 de la loi relative à l’organisation et fonctionnement des juridictions de l’ordre judiciaire, dispose que: les ‘’cours d’appel connaissent aussi du crime de génocide, des crimes de guerre et des crimes contre l'humanité commis par les personnes relevant de leur compétence et de celle des ribunaux de grande instance’’. la privation du tgi de ses justiciables personnels qui conduit à la turgescence de la compétence des cours d’appel entant que juge du premier degré, est en quelque sorte une innovation apportée par cette disposition, qui n’a pourtant pas échappée à diverses interprétations, dont celle qui, basée sur sa combinaison avec l’article 27 du statut, tend à leur reconnaitre l’exclusivité de la compétence en la matière. rencontrant avec clarté les difficultés d’interprétation soulevées par cette disposition, le professeur wane, dans un article publié en 2018, estime que cette disposition consacre à la fois une affirmation de la compétence des cours d’appel et, une non-infirmation de la compétence des autres juridictions en matière de crimes contre la paix et la sécurité de l’humanité. cette position est justifiée par le fait que, l’art 27 précité, qui réfute toute procédures spéciales notamment, le privilège de juridiction, est applicable uniquement à la cpi et non en droit interne, et ce, conformément aux libellés dudit article en combinaison avec l’article premier du statut.45 complémentarité consacré par le statut de rome, traité fondateur de la cpi. https://www.icccpi.int/pages/item.aspx?name=pr1034&ln=fr 37 la république démocratique du congo a ratifié cette convention internationale à travers son décret n°0013 du 30/03/2002. 38 affaire : le procureur c. jean-pierre bemba gombo 39 articles 522, 523 et 530 de cette ordonnance-loi prévoyant respectivement l’empoisonnement des eaux et denrées consommables, la mise à mort par représailles et le génocide. v. bienvenu wane bameme, “la question de juridictions congolaises compétentes en matière de crimes contre la paix et la sécurité de l’humanité”, revue de l’université congolaise i, 57 (2017): 55-83. 40 la loi n°024/2002 du 18 novembre 2002 portant code pénal militaire 41 loi n°023/2002 du 18 novembre 2002 portant code judiciaire militaire 42 ces crimes (internationaux) étaient classés en effet plutôt parmi les infractions mixtes (infractions de droit commun mais aggravées), on peut en comprendre qu’ils pouvaient être commis par quiconque (comme c’est d’ailleurs le cas concrètement) et de ce fait, être portés devant toute juridiction compétente (ordinaire ou spécialisée). lire le professeur bienvenu wane bameme, op.cit., 40. 43 la loi de corroborée par de la loi nº 15/023 du 31 décembre 2015 modifiant la loi nº 024-2002 du 18 novembre 2002 portant code pénal qui, dans le deuxième paragraphe de son préambule soutient que, la reconnaissance par la loi organique de 2013, aux juridictions de droit commun, la compétence de connaitre de ces crimes, leur eut perdu le caractère d'infraction exclusivement militaire. 44 loi organique n°13/011-b du 11 avril 2013 portant organisation, fonctionnement et compétences des juridictions de l’ordre judiciaire, in jo rdc,54ième année, n° spécial-première partie, du 04 mai 2013. 45 la cour dont il est question à l’article 27 point 2, il ne peut s’agir d’une autre cour que celle prévue par l’article premier du statut de rome. saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 86 c’est ainsi qu’en république démocratique du congo, à travers l’éclairage apporté par la doctrine dans l’interprétation de cette réforme, la répartition de compétences en matière de ces crimes est très étendue, impliquant une panoplie de juridictions notamment, le tribunal de grande instance qui conserve sa compétence d’attribution46; la cour d’appel qui juge ses justiciables et ceux du tribunal de grande instance47; la cour de cassation qui poursuit ses justiciables48; la cour constitutionnelle siégeant en matière pénale pour connaitre de l’infraction commise par le président de la république et le premier ministre49; le tribunal pour enfant, seule juridiction compétente en matière d’infractions commises par les personnes âgées de moins de 18 ans,50 et sans ignorer les juridictions militaires.51 la seconde réforme est celle de 2015 traitant de la coopération judiciaire avec la cpi”: 52 la relation qu’entretienne cette cour avec chaque etat est avant tout diplomatique, et de celle-ci, s’établit la coopération judiciaire. en ce sens, pour exercer sa mission, elle s’appuie pleinement sur la justice étatique pour toute procédure judiciaire dont elle estime nécessaire. en réalité, l’ouverture d’une enquête par la cpi nécessite donc, une investigation qui impliquerait forcément, une entraide judiciaire, entre la justice de l’etat dans lequel se trouvent les renseignements jugés indispensables pour l’enquête; ‘’une arrestation et une remise du suspect’’ dans le cas où la chambre préliminaire aura fait droit à la requête du procureur conformément à l’article 58 point 1 du statut; une exécution de la peine qui, en principe, s’effectue dans l’un des etats parties qui l’accepte. il va sans dire que, la coopération entre la cour et les etats est un aspect primordial du fonctionnement de cette juridiction parce que, sans elle, il lui est impossible de mettre en branle ses actions. il existe pour ce faire, une obligation de coopérer (c’est-à-dire un consentement donné lors de la ratification ou de la reconnaissance de la compétence de la cour en vertu du principe pacta sunt servanda) et une forme d’exhortation pour les autres etats, car, n’étant pas liés, ils ne sont pas tenus de coopérer. c’est ainsi que pour assurer la pleine collaboration avec la cour quelle que soit la forme de l’implémentation du statut en droit interne, chaque etat partie veille à prévoir dans sa législation nationale les procédures qui permettent la réalisation de toutes les formes de coopération visées par le statut 53 . on peut lire entre les lignes de cette obligation, une importante forme de la responsabilisation de l’etat, consistant à le confronter avec sa propre législation nationale (tu patere legem quam ipse fecisti) (même si ceci parait moins suffisant pour contrecarrer pratiquement une éventuelle position politique dissidente). cette recommandation a été prise en compte par le législateur congolais à travers cette réforme, qui précise clairement l’organe habilité de coopérer avec la cour pénale internationale à savoir, le procureur général près la cour de cassation intervenant dans tous les cas généraux, et le procureur général près la cour constitutionnelle qui agit que lorsqu’il s’agit des justiciables de cette cour.54 ainsi, lorsque le procureur de la cour pénale internationale souhaite intervenir directement sur le territoire de cet etat, il en avise immédiatement le procureur général concerné. ce dernier peut, en réponse à une demande d’entraide judiciaire, faire valoir des préoccupations et proposer au procureur de la cour pénale internationale d’exécuter lui-même ces actes, s’ils peuvent être exécutés dans les mêmes délais et selon les mêmes modalités.55 en pratique, dans le cadre de l’entraide judiciaire, la justice congolaise peut, sur demande de la cour, procéder au rassemblement d’éléments de preuve, y compris aux dépositions faites sous serment, à la production d’éléments de preuve, aux expertises et rapports dont la cour a besoin, et ce, conformément aux pouvoirs du procureur de la cpi d’enquêter sur le territoire d’un etat56. dans 46 article 89 al. 1er de la loi organique n°13/011-b précitée. 47 article 91 de la loi organique n°13/011-b précitée. 48 article 93 de la loi organique n°13/011-b précitée. 49 art. 163 et 164 de la constitution du 18 février 2006 telle que modifiée par la loi n°11/002 du 20 janvier 2011 portant révision de certains articles de la constitution, in j.o.rdc., 52ème année, n° spécial du 05 février 2011. 50 art. 94 et 99 al. 1 de la loi n°09/001 du 10 janvier 2009 portant protection de l’enfant, in jo rdc, 50è année, n° spécial, première partie, du 12 janvier 2009 51 lire à ce sujet le professeur b. wane bameme, op.cit., 40. 52 loi nº 15/024 du 31 décembre 2015 modifiant et complétant le décret du 06 août 1959 portant code de procédure pénale. 53 article 88 du statut de rome. 54 article 21 bis §3 de loi nº 15/024 du 31 décembre 2015 précitée. 55 article 21-11e de loi nº 15/024 du 31 décembre 2015 précitée. 56 article 54 point 3 du statut de rome précité. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 87 le même ordre d’idée, en matière d’interrogatoire, conformément aux articles 54, 86, 93 du statut, le procureur a le pouvoir d’interroger toute personne dont il estime l’audition nécessaire, mais il peut solliciter à cette fin, le concours des autorités judiciaire d’un etat. ainsi, en vertu de l’article 86 du statut et de l’article 21-13ème du code de procédure pénale congolaise, la justice congolaise peut, sur demande de la cour, procéder à cet interrogatoire. il en est de même en matière d’arrestation dont les demandes émanant de la cour sont adressées au même organe, en original et en copie certifiée accompagnées de toutes les pièces justificatives57. ces mandats d’arrêt sont exécutés58 par le procureur général concerné et ce, conformément à la légalité nationale en vigueur. enfin, il faut bien en prendre garde, car les deux aspects de réformes décrits ci-haut, ne sauraient suffire à eux-seuls, car il faut qu’il y ait en outre, une volonté étatique manifeste et agissante afin de rendre effective la répression, a contrario, une action supplétive s’avérerait nécessaire. 2. l’intervention supplétive de la cour pénale internationale l’intervention de la cour tire son fondement des articles 13 et 15, lesquels sont soumis aux conditions de recevabilité prévues à l’article 17 (a), tendant clairement à faire application du principe de la complémentarité. toutefois, le fait d’établir les conditions de recevabilité ne sert pas de saufconduit à la cour d’agir sur le territoire de l’etat indiqué, puisque l’obligation de notification prévue à l’article 18 (b) révèle une autre forme de subsidiarité, qui privilégie encore une fois l’action de l’etat dans la mesure où, elle lui permettrait de se saisir d’une affaire qui semblait éluder sa diligence. a. conditions de recevabilité prévues par l’art 17 du statut de rome: constat d’une prévisibilité de l’impunité l’analyse de l’article 17 du statut permet de considérer l’intervention conditionnelle de la cour comme le second aspect de la complémentarité, basé sur le manque de volonté (1) et ou l’incapacité (2) d’un etat à réprimer ces crimes internationaux. 1) appréciation du manque de volonté en considération du procès équitable tel que reconnu en droit international, l’appréciation du manque de volonté se fonde sur trois cas de figures: premièrement, il doit s’agir d’une procédure engagée ou déjà close ou de la décision de l'état prise dans le dessein de soustraire la personne concernée de sa responsabilité pénale pour les crimes relevant de la compétence de la cour. en d’autres termes, il doit s’agir d’une procédure ou d’une décision de l’etat ayant pour but de protéger le suspect contre une action judiciaire internationale. la chambre préliminaire dans l’affaire germain katanga et matthieu ngudjolo a estimée qu’il existe deux situations de manque de volonté : la première est celle qui se manifeste par le souhait d’entraver le cours de la justice. la seconde est celle dans laquelle un état souhaite soustraire une personne pour plusieurs raisons, notamment, pour que la cpi n'exerce pas sa compétence à son égard. la seconde forme, non explicitement prévue par l’article 17 du statut, correspond au souhait de ne pas voir la personne traduite en justice59. ce critère n’est pas un test de la bonne-foi des autorités nationales60 comme le pensent certains auteurs, mais plutôt celui de responsabilité d’un etat à poursuivre les crimes pour lesquels, il a pleinement compétence en vertu de ses propres lois nationales. toutefois, il incarne un élément subjectif quand il s’agit d’évaluer la qualité de la justice à la lumière des intentions réelles des états61. la subjectivité vise en réalité l’intérêt dans le chef de l’etat de refuser d’agir en répression, puisqu’il s’agit ici d’une volonté politique que judiciaire. eu égard à cet intérêt, on peut distinguer deux cas d’espèces : d’une part, une procédure judiciaire fondamentalement creuse, qui laisse entrevoir son issue très favorable à l’accuse dont le 57 article 21-14è de loi nº 15/024 du 31 décembre 2015 précitée : les demandes d’arrestation aux fins de remise délivrées par la cour sont adressées au procureur général concerné, dans les formes prévues à l’article 21 ter ci-dessus 58 article 21-14e et article 21-15e de loi nº 15/024 du 31 décembre 2015 précitée. 59 jacques mbokani, “l’impact de la stratégie de poursuite du procureur de la cpi sur la lutte contre l'impunité et la prévention des crimes de droit international”, à l’université catholique de louvain 2009, article disponible sur le site des droits fondamentaux: cette interprétation a été confirmée par la chambre d’appel de la même cpi. 60 almoktar ashnan, op.cit., 110. 61 hans-peter kaul, “the international criminal court: current challenges and perspectives”, washington university global studies law review 6, no. 3 (2007): 575-582, 577. saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 88 but dissimilé serait en outre, de faire prévaloir le principe : ne bis in idem en vue de décliner, in tempore opportuna, la compétence de la cour. d’autre part, une décision étatique de nature politicoadministrative constituant une sorte d’armure contre toute procédure judiciaire. il est évident que, la plupart de ces crimes ont toujours un lien plus ou moins politique, si leurs auteurs ne sont pas dans le fonctionnariat, ils seraient par contre ceux qui combattent le pouvoir en place afin d’obtenir un gain généralement quelconque. a ce titre, on peut évoquer le cas b. ntaganda, auquel, la cpi avait commencé à s’y intéresser un peu plus tôt jusqu’à délivrer en 2006 un mandat d’arrêt sous scellés à son encontre. pourtant en 2009, dans le cadre d’un accord de paix, le gouvernement congolais l’avait nommé général au sein de l’armée congolaise. il est demeuré à ce poste jusqu’à ce qu’il prenne fuite parmi d’autres militaires et crée avec eux en 2012 le groupe rebelle m23. s’il est vrai que le déclenchement des poursuites judiciaires au niveau national avaient été, par cette décision, impossibles, il saute aux yeux que la décision prise par l’etat de le nommer au sein de l’armée congolaise à un poste militaire de haute responsabilité, n’avait que pour but, sous prétexte d’un accord de paix, de soustraire l’intéressé d’une quelconque justice notamment, internationale. ainsi, sous cet aspect, le manque de volonté couvre une assurance de l’impunité sous la forme d’une juridicité, tandis que la complémentarité de la cour surgit, telle une garante contre cette impunité, que certains etats ont toujours réservée à ces grands criminels. c’est dans ce sens, que malgré cette nomination, le procureur de la cpi n’avait cessé de prévaloir la compétence de la cour et d’exiger l’arrestation et le transfèrement de l’intéressé. deuxièmement, la procédure doit avoir subi un retard injustifié qui, dans les circonstances, est incompatible avec l'intention de traduire en justice la personne concernée. estimant difficile la prouvabilité de l’hypothèse précédente, les rédacteurs du statut de rome ont donc convenu d’ajouter ce second critère, afin de faciliter l’application de la complémentarité. en fonction des critiques, l’adjectif ‘’injustifié’’ a été préféré à l’adjectif ‘’excessif’’, donnant ainsi à l’état la possibilité d’expliquer la raison pour laquelle, il a pris du retard. ce critère rend l’évaluation plus objective62 que dans le premier cas. ainsi, la cour, examinant cette hypothèse, peut s’en tenir aux informations que l’etat concerné pourrait avoir portées à son attention, conformément à la règle 51 du règlement de procédure et de preuve selon lesquelles, il démontre le défaut de pertinence dudit retard sur les principes juridiques internationalement admis. il est donc ici question d’une similarité dans le traitement des affaires au niveau interne, car il est possible d’établir le constat d’un retard injustifié, lorsque ceci est accompagné d’une intention d’échapper à la justice, avec les procédures habituelles de l’état dans des cas graves similaires 63 . certes, de cette comparaison peut résulter une constatation de manœuvres dilatoires tendant à décourager voire, à suborner ou éliminer les témoins, corrompre les victimes ou toute personne susceptible de porter à la connaissance des autorités judiciaires un quelconque élément de preuve. toutefois, même si la célérité d’un cas peut élucider sur la lenteur d’un autre, il est de bonne politique de ne pas considérer ce critère in globo, pour autant que chaque affaire comporte ses particularités. il conviendrait par conséquent, d’enquêter sur les circonstances de chaque situation séparément, afin de déterminer si, selon les faits d’un cas donné, l’intention était d’éviter que l’accusé soit face à la justice.64 enfin troisièmement, il doit être prouvé, que la procédure n'a pas été ou n'est pas menée de manière indépendante ou impartiale mais d'une manière qui, dans les circonstances, est incompatible avec l'intention de traduire en justice la personne concernée. s’agissant de l’impartialité et l’indépendance, le statut ne précise pas ce que l’on entend, en son sens, par ces notions, la doctrine renseigne que, l’impartialité est un état d’esprit de celui guidé par le souci de la justice en se référant au droit. elle implique une absence d’opinion préconçue, de parti pris, de préjugés65. bref, elle réfute tout élément ne se rapportant pas à la cause, lors de l’appréciation des 62 almoktar ashnan, op.cit., 110. 63 ibid. 64 mohamed el zeidy, the principle of complementarity in international criminal law: origin, development and practice (leiden: 1ère éd., boston, 2008) 182. cité par a. ashnan, loc.cit. 65 télesphore kavundja n. maneno, “l’independance et l’impartialite du juge en droit compare belge, français et de l’afrique francophone”, l’impartialité, thèse de doctorat en droit, u.c.l., louvain-la-neuve 2, (2005): 262-263. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 89 faits. tandis que, l’indépendance66 qui entretient des rapports très étroits avec la première, consiste en une absence de toute influence d’autres pouvoirs notamment, législatif et exécutif sur le cours procédural. dans le premier cas, la notion inclut bien à la fois le procureur et le juge, alors que dans le second, l’attention sera plus focalisée sur le travail du parquet, dans son pouvoir de déclencher les poursuites. puisqu’en effet, le lien de subordination qui existe entre le parquet et le pouvoir exécutif à travers le ministre de la justice ou de la défense, ne peut garantir au procureur chargé des poursuites, une pleine indépendance. or, en cette matière, l’importance de son indépendance est indispensable dans la mesure où, il représente le seul organe habilité d’intenter l’action en justice, au cas où, il s’agirait de personnalités politiques bénéficiant du privilège de juridiction. en droit congolais par exemple, il n’existe aucune possibilité pour le juge de se saisir d’office en cette matière, et la victime ne peut pas le saisir par citation directe67. ce qui ouvre largement la voie à l’influence politique, qui est toujours aux aguets. il convient de scruter objectivement l’attitude dudit procureur à l’égard des positions et avis purement politiques des membres du gouvernement, afin de mieux apprécier son indépendance. dans tous les cas, l’appréciation de la volonté de l’etat d’enquêter et de poursuivre penche visiblement vers une justice plus rigoureuse à l’encontre du suspect, excluant toute faveur illégale et inique à son bénéfice, tendant à lui éviter le poids d’un procès. cependant, il n’est nullement question de priver au suspect de son droit à un procès équitable peu importe la gravité des faits invoqués. b. appréciation de l’incapacité de l’etat à poursuivre en appréciant l’incapacité d’un etat à enquêter et à poursuivre, la complémentarité se constitue en un élément qui éprouve le système judiciaire national. mais il faut bien en prendre garde parce que, la cour ne peut pas porter un jugement sur les actes juridictionnels de la justice nationale dans les procédures qu’elle a engagées. la cour constate plutôt une situation selon laquelle, le fonctionnement de cette justice n’est pas régulier et rassurant face aux enjeux que comporte généralement un procès pour crimes internationaux. ainsi, l’incapacité de l’etat se rapporte d’un côté à l'effondrement de la totalité ou d'une partie substantielle de son appareil judiciaire, et de l’autre côté, à l'indisponibilité de celui-ci, de se saisir de l'accusé, de réunir les éléments de preuve et les témoignages nécessaires ou de mener autrement à bien la procédure.68 concernant l’effondrement, le statut ne précisant pas le sens qu’il entend donner à cette expression, certains auteurs estiment que l’effondrement est total, lorsqu’il y a destruction complète de l’administration de la justice, soit en raison de la perte par l’état de son contrôle sur le territoire ou en raison d’une décision nationale de supprimer l’administration de la justice.69 et, un effondrement substantiel comprend une situation, où les autorités de l’état ne sont pas nécessairement dysfonctionnelles, mais tout de même incapable d’assurer l’instruction de l’affaire70. l’adjectif substantiel, avait été préféré à l’adjectif ‘’partiel’’, initialement utilisé par la commission préparatoire, en vue de renforcer la priorité de la juridiction nationale et d’éviter que la cour assume la compétence du seul fait d’un conflit armé existant dans un état71. en pratique, les éléments tels que, le manque de personnel nécessaire et ou d’infrastructure judiciaire, l’absence d’une législation pénale, l'amnistie des criminels par le pouvoir politique72, peuvent être analysés comme éléments d’appréciation de l’effondrement d’un système judiciaire. 66 c’est la situation du juge auquel son statut (dispositions constitutionnelles et légales) assure la possibilité de prendre ses décisions à l’abri de toutes les influences, instructions et pressions. georges de leval, institutions judiciaires (liège: collection scientifique de la faculté de droit de liège, 1993) 37. 67 article 54 al. 2 du décret du 6 août 1959 portant le code de procédure pénale telle que modifié par la loi nº 15/024 du 31 décembre 2015 précitée. 68 communication relative à certaines questions de politique générale concernant le bureau du procureur. document en ligne sur: https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25 60aa962ed8b6/143595/030908_policy_paper_fr.pdf. (consulté le 30/01/2019). 69 jo stigen, the relationship between the international criminal court and national jurisdictions (the principle of complementarity) (boston: ledien, 2008) 314. cité par a. ashnan, loc.cit.. 70 jurdi nidal nabil, “the prosecutorial interpretation of the complementarity principle: does it really contribute to ending impunity on the national level?”, international criminal law review 10, (2010): 73–96, 80, doi: 10.1163/157181209x12584562670857. 71 holmes (j.), complementarity: national courts versus the icc, the rome statute of the international criminal court, a commentary, op.cit., 677. 72 jurdi nabil (n.), op.cit., 230. https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25%2060aa962ed8b6/143595/030908_policy_paper_fr.pdf saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 90 s’agissant de l’indisponibilité, à défaut d’une définition statutaire, la doctrine laisse comprendre qu’il existe bien dans ce cas un système judiciaire qui fonctionne, mais qui a échoué73, dans la mise en œuvre effective des procédures qui concourent à une bonne organisation du procès. il est ici question du succès de l’investigation et de poursuites, qui dépend de différents moyens appropriés notamment, matériels, financiers, juridiques etc., susceptibles de produire les meilleurs résultats ou d’assurer l’efficacité de l’action judiciaire. l'ancienne procureur du tpiy, louise arbour, avait critiqué le régime de complémentarité en arguant qu'il favoriserait les pays riches et développés au détriment des états pauvres69. un argument pratique et réaliste mais qui s’écarte quelque peu de l’explication fondamentale de ce principe, dans la mesure où, tous les etats sont ou devraient être égaux et aucun ne peut travailler à la place de l’autre. d’ailleurs, ces etats que l’on estime pauvres, ne tergiversent pas à brandir la souveraineté pour réfuter une action de la cour. a cet effet, faut-il rappeler que la souveraineté c’est la bonne gouvernance et celle-ci résulte de la responsabilisation. ainsi, la cour qui ne supplante pas les cours et tribunaux des etats, les invite, à travers la complémentarité, à capabiliser leurs systèmes judiciaires dans la recherche de ces crimes, l’arrestation des suspects, la collecte d’éléments de preuve, la prise en charge des victimes etc. bref, l’etat doit assumer sa responsabilité, qui est d’ailleurs, liée à son existence entant que tel, parce qu’un etat sans justice est inexistant. c. conséquence de la décision de la cour d’intervenir dans un etat: la complémentarité comme élément déclencheur des procédures nationales les rédacteurs de cet article lui ont assigné quatre objectifs: se focaliser une fois de plus sur l'importance capitale de la complémentarité de la cpi; encourager et permettre aux etats d'exercer très tôt leur droit d'enquête et de poursuite; éviter ainsi des enquêtes ou des procédures parallèles; et enfin en faire un outil de contrôle ou de limite des pouvoirs du procureur de la cpi 70 . cette disposition dans son esprit, parait éminemment explicative, démontrant la praticabilité de la complémentarité et qui donne l’image d’un gendarme-juridictionnel derrière les etats, leur rappelant à chaque fois leurs obligations d’agir en répression et en prévention contre ces crimes internationaux. sa teneur permet à la cour de combattre dans la mesure du possible, toute volonté politique favorable à l’impunité, tel qu’il a été illustré dans l’affaire b. ntaganda susmentionnée. cette obligation de notification prend la forme d’une véritable mise en demeure faite audit etat en vue d’assumer sa responsabilité. c’est une forme de déclenchement des poursuites nationales en avertissant d’une intervention internationale en vue. ainsi, cette signification aura pour conséquence directe, d’une part, la réaction de l’etat qui pourrait dans le mois qui suit sa réception, informer la cour qu'il ouvre ou a ouvert une enquête sur ses ressortissants ou d'autres personnes sous sa juridiction pour des actes criminels qui pourraient être constitutifs des crimes visés à l'article 5 du statut, et qui ont un rapport avec les renseignements notifiés. s’il le lui demande, le procureur lui défère le soin de l'enquête sur ces personnes. d’autre part, elle permet dans le cas où le procureur concède (sans recourir à la chambre préliminaire), d’établir une coopération étrécie entre la cour et l’etat concerné dans le cadre de ladite affaire. c. conclusion après plus de deux décennies, force est de relever l’importance de la cpi dans le système pénal international dans la lutte pour la paix et la sécurité de l’humanité. sa complémentarité qui justifie sa permanence vise la lutte contre toute impunité que les systèmes nationaux pourraient réserver aux criminels qui leur présentent un certain intérêt. d’où, l’origine de cette hostilité presque irréconciliable envers cette cour qui d’ailleurs, était prévisible depuis la période des discussions relatives à sa création. cependant, du nombre d’affaires pour lesquelles la cour a utilisée sa compétence, il ressort que la complémentarité n’est pas en soi un problème. parce que d’une part, les etats ont majoritairement recouru à la compétence de la cour et d’autre part, le conseil de sécurité qui comprend les etats puissants et hostiles à cette juridiction, n’a pas hésité à y recourir pour tenter de suppéditer la paix (théoriquement) dans l’une des régions du monde, notamment, au darfour et 73 laucci (c.), “les compétences nationales et internationales en matière de répression des crimes de guerre”, thèse de doctorat, aix-marseille iii, (2001), 975. 69 laucci (c.), op.cit., 977. 70 a. ashnan, op.cit., 201. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 91 en lybie. ceci implique que les etats et la communauté internationale reconnaissent à la cour une certaine capacité de suppléer un vide judiciaire dans une partie du monde. voyons par exemple la libye qui n’est pas partie au traité et dont la situation a été transférée par le conseil de sécurité, a fourni un très bel exemple, celui de ne pas décrier la cour, mais d’invoquer devant ses juges, qu’en vertu de la complémentarité de la cour, celle-ci ne devait pas agir en lieu et place de l’etat libyen, car son système était bien capable et il y avait la volonté de poursuivre. il en est de même de ceux des etats qui collaborent sans difficulté avec la cour, dont le cas kenyan ayant impliqué le président uhuru kenyatta et son vice-président william ruto.71 cette attitude qui semblerait être une impuissance de l’etat, comme on le dit toujours dans le langage commun : ‘’que la cpi est une juridiction contre les etats faibles’’, révèle en réalité la volonté (consciente ou inconsciente) de bâtir un monde relativement paisible et sécurisé selon les normes que les etats eux-mêmes décident souverainement de mettre en place au niveau international. on ne peut prétendre vouloir la paix et ignorer la justice, et celle-ci symbolisant la cohésion sociale, exigent préalablement un degré d’adhésion collective, afin de répandre son influence dissuasive sur un large spectre. cependant, reconnaitre la compétence de la cour, c’est avant tout reconnaitre l’obligation de rendre son système interne capable et de briser toute barrière de quelque nature que ce soit, susceptible d’étouffer une action judiciaire ou de torpiller sa substance. car, on peut le rappeler, la cour mesure son efficacité par l’absence d’affaires à son niveau, parce que les etats eux-mêmes agissent congrument. bibliography a. journal bameme, bienvenu wane. “la question de juridictions congolaises competentes en matiere de crimes contre la paix et la securite de l’humanite”, revue de l’université congolaise i, 57, 2017: 55-83. becker, steven w. “les objections des grandes nations a la cour penal internationale”, eres “revue internationale de droit pénal” 81, no. 1, 2010: 47-64. currat, philippe. “hans kelsen, carl schmitt et la cour penale internationale. quelques reflexions apres la premiere decennie d’exercice de la cour”, afri 14, 2013: 497-525. decherf, lire dominique. “le kenya et la cour penale internationale”, études 11 tome 419, 2013: 449-460. dezalay, sara. “l’afrique contre la cour penale internationale ? élements de sociogenese sur les possibles de la justice internationale”, editions karthala politique africaine 156, no. 2, 2017: 165-182. jurdi, nidal nabil, “the prosecutorial interpretation of the complementarity principle: does it really contribute to ending impunity on the national level?”, international criminal law review 10, 2010: 73–96, doi: 10.1163/157181209x12584562670857. kaul, hans-peter. “the international criminal court: current challenges and perspectives”, washington university global studies law review 6, no. 3, 2007: 575-582. khamidova, m. f. “creation d'une cour penale internationale et questions juridiques de responsabilite pour les crimes internationaux”, bulletin de l'université d'état de saint-pétersbourg 3, no. 8, 2017: 337348. orentlicher, lire aussi., diane f, “politique par d'autres moyens: le droit de la cour penale internationale”, cornell international law journal 32, no. 3, 1999. 71 lire dominique decherf, “le kenya et la cour penale internationale”, études 11 tome 419 (2013): 449-460. saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 92 tousignant, maxime c.“l'instrumentalisation du principe de complementarite de la cpi: une question d'actualite”, revue québécoise de droit international 25, no. 2, 2012: 73-99. b. livre et thèse almoktar ashnan, “le principe de complémentarité entre la cour pénale internationale et la juridiction pénale nationale”, thèse, faculté de droit/droit public, université françois rabelais de tours, 2015. de leval, georges. institutions judiciaires. liège: collection scientifique de la faculté de droit de liège, 1993. el zeidy, mohamed. the principle of complementarity in international criminal law: origin, development and practice. leiden: 1ère éd., boston, 2008. grangé, ninon (dir.), ramel, frédéric (dir.), le droit international selon hans kelsen : criminalités, responsabilités, normativités. nouvelle édition [en ligne], lyon: ens éditions, 2018. jacques mbokani, “l’impact de la stratégie de poursuite du procureur de la cpi sur la lutte contre l'impunité et la prévention des crimes de droit international”, à l’université catholique de louvain 2009. laucci (c.), “les compétences nationales et internationales en matière de répression des crimes de guerre”, thèse de doctorat, aix-marseille iii, 2003. maneno, télesphore kavundja n. “l’indépendance et l’impartialité du juge en droit comparé belge, français et de l’afrique francophone”, l’impartialité, de doctorat en droit, u.c.l., louvain-la-neuve 2, 2005: 262-263. r kayumova, alfiya. la juridiction pénale en droit international. kazan: centre d’innovation technologique, 2016. seils, paul. guide de la complémentarité: introduction quant au rôle des juridictions nationales et de la cour pénale internationale dans la poursuite des crimes internationaux. ictj: meredith barges, 2016. stigen, jo. the relationship between the international criminal court and national jurisdictions (the principle of complementarity). boston: ledien, 2008. triffterer, otto. commentaire du statut de rome de la cour pénale internationale, observations, notes article par article, 1ère éd. bruxelles: bruylant, 1999. c. règlements affaire: le procureur c. jean-pierre bemba gombo. conférence de l’union africaine, 13e session ordinaire, syrte, 3 juillet 2009, décision sur le rapport de la réunion des états africains parties au statut de rome de la cour pénale internationale (c.p.i.) — assemblée/au/déc., 245 (xiii) rev.1, § 10. j.o.rdc., 52ème année, n° spécial du 05 février 2011. la loi de corroborée par de la loi nº 15/023 du 31 décembre 2015 modifiant la loi nº 024-2002 du 18 novembre 2002 portant code pénal qui, dans le deuxième paragraphe de son préambule soutient que, la reconnaissance par la loi organique de 2013, aux juridictions de droit commun, la compétence de connaitre de ces crimes, leur eut perdu le caractère d'infraction exclusivement militaire. la loi n°024/2002 du 18 novembre 2002 portant code pénal militaire la loi n°09/001 du 10 janvier 2009 portant protection de l’enfant, in jo rdc, 50è année, n° spécial, première partie, du 12 janvier 2009 la république démocratique du congo a ratifié cette convention internationale à travers son décret n°0013 du 30/03/2002. loi n°023/2002 du 18 novembre 2002 portant code judiciaire militaire loi nº 15/024 du 31 décembre 2015. loi organique n°13/011-b du 11 avril 2013 portant organisation, fonctionnement et compétences des juridictions de l’ordre judiciaire, in jo rdc,54ième année, n° spécial-première partie, du 04 mai 2013. lampung journal of international law (lajil) p-issn: 2656-6532 volume 1 issue 2, 2019 e-issn: 2723-2603 93 rapport du haut-commissariat des nations unies aux droits de l’homme du conseil des droits de l’homme groupe de travail sur l’examen périodique universel, vingt-septième session 1 er -12 mai 2017, compilation concernant les philippines, 3. référencec.n.138.2018.treatiesxviii.10//https://treaties.un.org/doc/publication/cn/2018/cn.13 8.2018-eng.pdf report of the ad hoc committee on the establishement of an international criminal court// document de l’onu du 06/09/1995. statut de rome. voir l’article dans le magazine le temps, publié lundi 10 septembre 2018 à 19:51, modifié lundi 10 septembre 2018 à 19:54. voir les travaux de la conférence de révision du statut de rome, tenue à kampala, ouganda, juin 2010, complémentarité, rc/11, annexe v(c), résumé officieux des points focaux, et autres documents liés, disponible sur le site internet www.icc-cpi.int/iccdocs/asp_docs/rc2010/rc11-annex.v.c-fra.pdf. cf. également les rapports du bureau et du secrétariat de l’assemblée des etats parties sur la complémentarité, présentés à la 11ème session de l’assemblée, la haye, pays-bas, 14-22 nov. 2011, respectivement icc-asp/11/24 et 25. d. internet http://www.elibrary.az/docs/jurnal/jrn2017_731.pdf, consulté le 20/01/2019. https://treaties.un.org/doc/publication/cn/2016/cn.805.2016-eng.pdf, consulté le 30/01/2019. https://treaties.un.org/doc/publication/cn/2016/cn.862.2016-eng.pdf, consulté le 30/01/2019. https://www.icc-cpi.int/about?ln=fr, consulté le 30/01/2019. https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b78b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf, consulté le 30/01/2019. https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b78b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf, consulté le 30/01/2019. https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b78b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf, consulté le 30/01/2019. https://www.icc-cpi.int/pages/item.aspx?name=180208-otp-stat&ln=fr , consulté le 30/01/2019. https://www.icc-cpi.int/pages/item.aspx?name=pr1034&ln=fr, consulté le 30/01/2019. http://www.elibrary.az/docs/jurnal/jrn2017_731.pdf https://treaties.un.org/doc/publication/cn/2016/cn.805.2016-eng.pdf https://treaties.un.org/doc/publication/cn/2016/cn.862.2016-eng.pdf https://www.icc-cpi.int/about?ln=fr https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6/143595/030908_policy_paper_fr.pdf https://www.icc-cpi.int/pages/item.aspx?name=pr1034&ln=fr saisir l’action de la cour pénale internationale par sa complementarite ovide e. manzanga kpanya 94 91 measuring the dominant paradigma in united nations convention on the law of the sea nadhif fadhlan musyaffa1, arie kusuma paksi,2 lalu radi myarta3 1 universitas muhammadiyah yogyakarta, indonesia, e-mail: nadhif.f.isip20@mail.umy.ac.id 2 universitas muhammadiyah yogyakarta, indonesia, e-mail: ariekusumapaksi@umy.ac.id 3 universitas muhammadiyah yogyakarta, indonesia, e-mail: lalu.radi.psc19@mail.umy.ac.id submitted: apr 28, 2022; reviewed: aug 22, 2022.; accepted: oct 11, 2022 article info abstract keywords: law, united nations, paradigm, searelated issues, united nations convention on the law of the sea doi : 10.25041/lajil.v4i2.2595 this study discusses the paradigm used by the united nations in governing relations among countries on searelated issues through the analysis of the united nations convention on the law of the sea. laws/regulations on sea-related issues have undergone changes, since their inception in 1958 in line with the development of the issue of sea between countries and the factors that cause the proliferation of sea-related disputes, as well as political and economic dynamics in the international sphere. reforms in the regulatory mechanism on sea-related issues between countries by the united nations were marked by the formation of the united nations convention on the law of the sea in 1982 which has several stipulations. this writing aims to analyze and measure the paradigm used by the united nations in regulating mechanisms on sea-related issues between countries through the analysis of the united nations convention on the law of the sea. the author uses the content analysis method in analyzing the law. the analysis was carried out on three indicators; actors, authorities, and governance representing the three paradigms; realism (competition), liberalism (collaboration), and constructivism (historical and social construction). based on the analysis results, it can be concluded that; the united nations convention on the law of the sea concerning the regulation mechanism on searelated issues between countries is strongly influenced by the realism paradigm. volume 4 number 2, july-december 2022 : pp. 91-102 department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:nadhif.f.isip20@mail.umy.ac.id mailto:ariekusumapaksi@umy.ac.id mailto:lalu.radi.psc19@mail.umy.ac.id measuring the dominant paradigma … nadhif fadhl, arie and lalu 92 a. introduction the term territorial waters are sometimes used informally to refer to any area of water over which a state has jurisdiction, including internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, and potentially the continental shelf. the term is used as a synonym for the territorial sea in a narrower sense.1 according to the united nations convention on the law of the sea (unclos) 2, the territorial sea is a belt of coastal waters extending at most 12 nautical miles (22 km; 14 mi) from a coastal state's baseline (usually the mean low-water mark). the territorial sea is regarded as the state's sovereign territory,3 although foreign ships (military and civilian) are allowed innocent passage through it or transit passage for straits; this sovereignty also extends to the airspace over and seabed below. adjustment of these boundaries is called, in international law, maritime delimitation. the regulation of maritime boundaries has also been regulated in the 1982 united nations convention on law of the sea.4 international law is known as the law that regulates legal subjects across countries. 5 the law of the sea is a body of customs, treaties, and international agreements by which governments maintain order, productivity, and peaceful relations on the sea.6 the scope of international relations has its own perspective in viewing marine issues. the point of view and approach used will influence our thoughts on marine issues. the realism approach views maritime issues as an important issue in international relations. realism, also known as political realism, is a view of international politics that stresses its competitive and conflictual side.7 realism views the state as the primary and most influential actor (state-centric).8 it is usually contrasted with idealism or liberalism, which tends to emphasize cooperation. realists consider the principal actors in the international arena to be states, which are concerned with their own security, act in pursuit of their own national interests, and struggle for power.9 as the opposite of realism, liberalism, or labelled as idealist,10 the liberalism approach views that international relations actors are not only the state but also other actors such as multinational companies (mncs), non-governmental organizations (ngos), and others. then, the interest of the state is the individual’s interest. moreover, liberalism sees the international structure as not a conflictual relation, but collaboration. liberalists naturally turn to law as a limitation of power.11 1 https://www.britannica.com/topic/territorial-waters, diakses pada 3 april 2022. 2 law number 2 of 1982 united nations convention on the law of the sea 3 jörgen ödalen, “underwater self-determination: sea-level rise and deterritorialized small island states.” ethics, policy, and environment 17, no. 2, (2014): 225-237, 17, doi: 10.1080/21550085.2014.926086 4 ibid. 5 orakhelashvili, akehurst's modern introduction to international law (london: routledge, 2018). (8th ed.). https://doi.org/10.4324/9780429439391 6 https://oceanservice.noaa.gov/facts/lawofsea.html, diakses pada 10 maret 2022. 7 william wohlforth, “gilpinian realism and international relations.” international relations 25, no. 4, (2011): 499–511, 25, https://doi.org/10.1177/0047117811411742 8 stefano guzzini, “the enduring dilemmas of realism in international relations.” european journal of international relations 10, no. 4, (2004): 533–568, 10, https://doi.org/10.1177/1354066104047848 9 hans. j. morgenthau, politic among nations. (new york: mcgraw-hill, 1985), 165. 10 andrew moravcsik, liberalism and international relations theory. (cambridge: harvard university press), 3-4. 11 robert keohane, “twenty years of institutional liberalism.” international relations 26, no. 2, (2012): 125–138, 26, https://doi.org/10.1177/0047117812438451 lampung journal of international law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 93 meanwhile, the constructivist approach states that marine issues are not issues that arise by themselves but issues that arise from social construction.12 constructivism has always linked security issues with ideas and norms. the root of this theory is structuration and symbolic interactionism. in the scope of actor, the state is not the only actor in the world, but also t he international institutions.13 the three approaches that have been presented above are often used by countries and institutions, or organizations in viewing an issue and making a policy. therefore, the author intends to conduct a more in-depth analysis of the perspectives and approaches used by the united nations in viewing marine issues through the united nations convention on the law of the sea. there is already an article that discusses marine issues in the international scope through content analysis from unclos. the article is the concept of the archipelagic province and archipelagic state in the perspective of national and international law compiled by muhammad risnain.14 the similarity of this writing with previous writings is that they both carry out analysis using unclos. meanwhile, the novelty this article the difference between this writing and the previous one is that the writer performs an analysis using content analysis through three indicators (authority, governance, and actors). then the author views the results of the unclos content analysis using three approaches in international relations, namely realism, liberalism, and constructivism. this paper aims to determine the paradigm used by the united nations in viewing and making policies related to marine issues. this paper aims to determine the paradigm used by the united nations in viewing and making policies related to marine issues (unclos). the author has compiled three hypotheses to analyze the measurement results. first, the regulation of the maritime problems regulated by unclos uses a realism approach. second, the regulation of maritime issues regulated by unclos uses a liberalism approach. third, the regulation of maritime issues regulated by unclos uses a constructivist approach. b. discussion analysis towards united nations convention on the law of the sea as a step to realize justice for all nations in terms of maritime affairs and avoid the impact of conflicts between countries, it is necessary to have the role of the united nations. because, in the beginning, there was a law of the sea, namely the older 'freedom of the seas' concept,15 dating from the 17th century. until in the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (the league of nations called a 1930 conference at the hague, but no agreements). in other hand, law of the sea is accommodating the negotiation in attempting to increase state sovereignty and exploitation of the seabed16. then, by 1967, only 12 peltonen and hannes, “a tale of two cognitions: the evolution of social constructivism in international relations.” revista brasileira de política internacional 60, no. 1, (2017): 1-18, 60, https://doi.org/10.1590/0034-7329201700105. 13 muhammad rosyidin, teori hubungan internasional: dari perspektif klasik sampai non-barat. (depok: rajawali pers, 2020) 14 muhammad risnain, "the concept of the archipelagic province and archipelagic state in the perspective of national and international law", lampung journal of international law 3, no. 2, (2021): 73-84, 3, doi: 10.25041/lajil.v3i2.2367 15 mirja amshav, “the freedom of the seas: untapping the archaeological potential of marine debris,” journal of maritime archaeology 9, no.1, (2014): 8, 9, doi:10.1007/s11457-014-9129-5 16 pierre thévenin, “a liberal maritime power as any other? the soviet union during the negotiations of the law of the sea convention,” ocean development and international law 52, no. 2, (2021): 193–223, 52, https://doi.org/10.1080/00908320.2021.1910158 measuring the dominant paradigma … nadhif fadhl, arie and lalu 94 25 nations still used the old three nautical mile limit. because of those rules are not relevant anymore, the united nations formed the new law. in addition, the provisions in the united nations convention on the law of the sea concerning the law and regulations of the sea are in accordance with constitutional life, legal developments, and the needs of the community so that the law does not need to be changed. thus, on december 10, 1982, the united nations, after the third maritime conference, ratified the united nations convention on the law of the sea concerning a legal framework for all marine and maritime activities.17 then the law was ratified with 60 ratifications as the basis for the united nations in carrying out its roles and functions to regulate laws related to maritime affairs. maintaining international order by agreeing to regulatory authority to avoid dispute in specific areas18. most of the dispute came from the legal issues of international concern such as ocean navigation, strategic purposes and trade19. it is essential to manage the distribution of state’s interest in achieving ecological, economic and the outcome through social interaction20. territorial sea and contiguous zone according to the united nations convention on the law of the sea is the sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. the united nations carry out arrangements on maritime issues between countries. in practice, not all countries have signed unclos (a total of 157 countries have signed). the author uses three indicators to analyze the point of view and approach used by the united nations in viewing marine issues through unclos. as such maritime security is prone to be attacked by piracy and any armed robbery, therefore this should be in the discourse under unclos21, conflict of interest22 , conquest and exploitation23. the peace would be a threat for peace and cause further conflict24. therefore, the concepts of uclos is essential to the interest of international community, in other to maintain society purposes among the members 25. the three indicators are actors, authorities, and governance. then, the writer groups the use of words, sentences, and symbols related to the three indicators into three approaches. the three approaches are realism, liberalism, and constructivism. the following are the results of the analysis that has been carried out by the author. 17 spalding, ana k, de ycaza, and ricardo, “navigating shifting regimes of ocean governance,” environment and society: advances in research 11, no. 1, (2020): 5–26, 11, doi:10.3167/ares.2020.110102 18 eric a. posner and alan o. sykes, “economic foundations of the law of the sea,” american journal of international law 104, no. 4, (2010): 569–96, 104, https://doi.org/10.5305/amerjintelaw.104.4.0569. 19 sunil kumar agarwal, “prospects of a paradigm shift in the american policy towards un convention on the law of the sea: potential implications,” ssrn electronic journal, (2012), https://doi.org/10.2139/ssrn.1866113. 20 jacek zaucha and kira gee, maritime spatial planning: past, present, future, maritime spatial planning: past, present, future. (london: palgrave macmillan, 2019). https://doi.org/10.1007/978-3-319-98696-8. 21 edwin egede, the law of the seabed. (leiden: brill publishers, 2019), 249–65. https://doi.org/10.1163/9789004391567. 22 lisa b. uffman-kirsch, benjamin j. richardson, and elizabeth ingrid van putten, “a new paradigm for social license as a path to marine sustainability,” frontiers in marine science 7, no. 2 , (2020): 1–6, 7, https://doi.org/10.3389/fmars.2020.571373. 23 jeffrey s. lantis, " agentic constructivism and the proliferation security initiative: modeling norm change ", cooperation and conflict 51, no. 3, (2016): 384–400, 51, https://doi.org/10.1177/0010836716640831. 24 robert kelly stewart, “strategic puzzle in the south china sea: perception, power, and money.” chinese plans for hegemony?", international political economy theses. (2018): 21. https://soundideas.pugetsound.edu/ipe_theses/21. 25 yoshifumi tanaka, "changing paradigms in the law of the sea and the marine arctic ", international journal of marine and coastal law 35, no. 3, (2020): 439-67, 35, https://doi.org/10.1163/15718085bja10012. lampung journal of international law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 95 1. authority analysis table 1. measurement results of authority indicators in the united nations convention on the law of the sea approach no authority word count realism 1 maintenance 31 2 government 79 3 assignment/assign 5 4 supervision 7 5 mastery 9 6 measuring 160 7 warning 6 8 bordering 28 9 enforcement 50 10 exploitation 98 11 audit 10 12 arrangement 55 13 evaluating 6 14 operation 112 15 controlling 101 total 757 percentage 60% 16 services 42 constructivism 17 protection 62 18 planning 10 19 directing 1 20 investigation 18 21 management 30 22 compliance 70 23 recovery 31 24 coordinate 30 25 rescue 2 26 dealing 18 27 prevention 88 28 training 20 29 repair 6 30 allocation 10 31 organizing 1 measuring the dominant paradigma … nadhif fadhl, arie and lalu 96 32 avoidance 2 33 cooperation 47 34 distribution 11 total 499 percentage 40% total authority 1256 based on the results of the analysis listed in table 1, it can be explained that the authorities in unclos on maritime issues between countries place more emphasis on the realism approach with a percentage of 60%. this realism authority is evidenced by the use of the words government, measuring, exploitation, operation, controlling, and other authorities. while the use of words that represent the constructivist approach only has a percentage of 40% with the use of the words compliance, cooperation, prevention, protection, and other authorities. unclos provides guarantees to the united nations for governing, measuring, exploitation, operation, controlling, and other actions. actions based on this realist approach aim to regulate maritime issues between countries in the international arena. 2. governance analysis table 2. results of measurement of governance indicators in the united nations convention on the law of the sea approach no governance number of words realism 1 plan 26 2 policy 20 3 law 204 4 constitution 8 5 process 46 6 threat 18 7 criminal 3 8 decision 75 9 system 42 10 procedure 228 total 670 percentage 45% liberalism 11 information 64 12 document 10 13 program 39 14 detail 5 15 conservation 37 total 155 percentage 10.5% 16 aid 31 lampung journal of international law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 97 constructivism 17 facilities 55 18 infrastructure 5 19 principle 41 20 foundation 1 21 accord 317 22 education 6 23 structure 36 24 guideline 8 25 consideration 30 26 warrant 3 27 guarantee 7 28 deliberation 2 29 agreement 122 total 664 percentage 44.5% total governance 1489 based on the results of the analysis listed in table 2, it can be explained that the governance in unclos emphasizes the realist approach compared to the liberal and constructivist approaches, even though the constructivism approach is almost balanced with the realism. governance that emphasizes a realist approach is evidenced by the use of the words law, procedure, decision, process, and other governance. governance in unclos aims to regulate marine issues by the united nations, namely coordination with countries related to governing, measuring, exploitation, operation, controlling, and other actions. the united nations realizes its function as an enforcer of the law of the sea through the establishment of unclos regulations. 3. actor analysis table 3. measurement results of actor indicators in the united nations convention on the law of the sea approach actor number of words realism 1 president 39 2 secretary 78 3 officials 49 4 parties 501 5 army 2 6 councils 125 7 courts 38 8 advisory 10 9 representatives 17 10 tribunal 212 measuring the dominant paradigma … nadhif fadhl, arie and lalu 98 total 1071 percentage 50% liberalism 11 institutions 20 12 people 8 13 community 1 14 public 33 15 residents 2 16 fisher 14 17 groups 14 18 members 252 19 private 4 total 348 percentage 16% constructivism 20 non-governmental 3 21 nations 107 22 corporations 1 23 international 370 24 organizations 201 total 682 percentage 34% total actors 2101 based on the results of the analysis listed in table 3, it can be explained that unclos places more emphasis on the role of state actors compared to non-state actors. from the analysis results, realist actors get a higher percentage of results than liberalist and constructivist actors. the use of realist actors, as evidenced by the use of the words tribunal, court, secretary, parties, councils, and is followed by other actors related to the state. the use of realist actors has a percentage yield of 50%, liberal actors have a percentage yield of 16%, and constructivist actors have a yield of 34%. the activities of state institutions as realist actors are more emphasized on maritime issues that aim to seek peace between countries and governments. based on the comparison of the measurement results of three indicators (authority, governance, and actors) using three approaches (realism, liberalism, and constructivism), it shows that the realism approach has dominated the united nations' policy direction in viewing marine issues through unclos. this realism approach has been reflected in the use of words that are dominated by state actors and government institutions, which are carried out through governing, measuring, exploitation, operation, controlling, and other actions. realistic governance is wrapped through a series of regulations and laws that are adapted to official procedures. the difference between this paper and previous research related to unclos is that this paper analyzes the paradigm that unclos has according to the international relations theories. meanwhile, the paper titled the concept of the archipelagic province and archipelagic state lampung journal of international law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 99 in the perspective of national and international law compiled by muhammad risnain discussed about the perspective of unclos towards archipelagic states.26 c. conclusion the realism paradigm influenced the united nations to form the unclos in 1982. according to this research, we can understand that the countries in the world are playing a significant influence to implement and force this regulation. we suggest to the united nations to make balance on forming the unclos. liberalism might be very useful to be used in this case in order to decrease the conflict and increase the collaboration among states. also, for constructivism, the united nations have to form the paradigm that the law of the sea was also made not by the structured way from states, but also the historical reasons and societies. the suggestion for the following research could be analyzing the united nations convention on contracts for the international carriage of goods wholly or partly by sea. this could give opportunity for the researcher to understand more about the paradigm that the united nations uses for regulating sea-related issues. references agarwal, k. sunil, “prospects of a paradigm shift in the american policy towards un convention on the law of the sea: potential implications,” ssrn electronic journal, (2012), https://doi.org/10.2139/ssrn.1866113 amshav, mirja, “the freedom of the seas: untapping the archaeological potential of marine debris,” journal of maritime archaeology 9, no.1, (2014): 8, 9, doi:10.1007/s11457-014-9129-5 egede, edwin, the law of the seabed. leiden: brill publishers, 2019, 249–65. https://doi.org/10.1163/9789004391567 guzzini, stefano, “the enduring dilemmas of realism in international relations.” european journal of international relations 10, no. 4, (2004): 533–568, 10, 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perspective of national and international law", lampung journal of international law 3, no. 2, (2021): 7384, 3, doi: 10.25041/lajil.v3i2.2367 rosyidin, muhammad , teori hubungan internasional: dari perspektif klasik sampai nonbarat. depok: rajawali pers, 2020. spalding, ana k, de ycaza, and ricardo, “navigating shifting regimes of ocean governance,” environment and society: advances in research 11, no. 1, (2020): 5– 26, 11, doi:10.3167/ares.2020.110102 stewart, k. robert, “strategic puzzle in the south china sea: perception, power, and money.” chinese plans for hegemony?", international political economy theses. (2018): 21. https://soundideas.pugetsound.edu/ipe_theses/21. tanaka, yoshifumi, "changing paradigms in the law of the sea and the marine arctic ", international journal of marine and coastal law 35, no. 3, (2020): 439-67, 35, https://doi.org/10.1163/15718085-bja10012 thévenin, pierre, “a liberal maritime power as any other? the soviet union during the negotiations of the law of the sea convention,” ocean development and international law 52, no. 2, (2021): 193– 223, 52, https://doi.org/10.1080/00908320.2021.1910158 uffman-kirsch, lisa, benjamin j. richardson, and elizabeth ingrid van putten, “a new paradigm for social license as a path to marine sustainability,” frontiers in marine science 7, no. 2 , (2020): 1–6, 7, https://doi.org/10.3389/fmars.2020.571373. lampung journal of international law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 101 wohlforth, william, “gilpinian realism and international relations.” international relations 25, no. 4, (2011): 499–511, 25, https://doi.org/10.1177/0047117811411742 zaucha, jacek, and kira gee, maritime spatial planning: past, present, future, maritime spatial planning: past, present, future. london: palgrave macmillan, 2019. https://doi.org/10.1007/978-3-319-98696-8. https://doi.org/10.1007/978-3-319-98696-8 measuring the dominant paradigma … nadhif fadhl, arie and lalu 102 www 29 shackling persons with mental disability in international human rights law and its implementation in indonesia m. ya’kub aiyub kadir 1 , dara rizky fadillah 2 1 universitas syiah kuala, e-mail: m.yakub.akadir@unsyiah.ac.id 2 universitas syiah kuala, e-mail: dara.rizky98@gmail.com submitted: january 26, 2023; reviewed: march 24, 2023; accepted: march 31, 2023 article info abstract keywords: crpd, human rights law, indonesia, mental disability, shackling. doi: 10.25041/lajil.v5i1.2895 this article investigates the implementation of human rights protection for persons with a mental disability who are being shackled and its challenges in indonesia. using a doctrinal and empirical approach, this article found that laws and regulations concerning persons with mental disabilities are yet not fully in line with international human rights law, and governments’ efforts to free persons with mental disabilities from shackling eventually have succeeded in reducing the number of shackling cases, however, have not been fully effective. other obstacles in their community and family, such as stigma, discrimination, and lack of public knowledge about mental health, can hinder fulfilling the rights of persons with mental disabilities. it is recommended to revise articles or laws and regulations which infringe international law and scale up efforts, whether in funds allocation or human resources, facilities, and access to affordable, adequate rightsbased mental health services. a. introduction disabilities people are one of indonesia's most marginalized groups and even the world. paul hunt, the first special rapporteur on the right to health, dedicated his 2005 report on mental health. his report described people with mental disabilities as "the most neglected, marginalized, and vulnerable group." they experience human rights violations in various aspects of life and within their community. one of the human rights violations experienced by people with mental disabilities is shackling. in indonesia, this practice has been banned since 1977. however, shackling is still can be found today in various regions of indonesia, including in aceh province, particularly in aceh besar district. families and villagers sometimes treat people with mental illness inhumanely for various reasons. pasung usually occurs in the local community. according to article 1 point 3 of the regulation of the minister of health of the republic of indonesia number 54, the year 2017, concerning the handling of shackling in people with mental disorders: volume 5 number 1, march 2023: pp. 29-40. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 30 "shackling is any form of restriction of movement of people with mental disorders (odgj) by their families or communities results in the loss of freedom of odgj, including the loss of the right to health services to assist recovery." 1 human rights watch (hrw) focuses on the global issue of shackling in its most recent study published in honor of world mental health day. the use of shackles on people with mental disorders was observed in 60 of the 110 countries hrw surveyed. in other words, according to the report, hrw stated that shackling is described as the most egregious, oldfashioned, and primitive form of physical restraint. 2 it is primarily used in non-medical settings and is a global issue for which there have been no international or regional efforts to eradicate the practice. it is challenging to pinpoint the exact scope of this practice without comprehensive global data. still, according to human rights watch, at least 100,000 people worldwide with mental health disorders have ever been shackled, chained, or confined in a small space. 3 according to aceh provincial health office, data, 21,414 people have mental illness in aceh, and around 142 people have been shackled until 2019. in aceh besar 2,880 people have mental illness as of 2019, and 8 cases of shackling were found until 2019. 4 to eradicate the practice of shackling, the government of aceh launched the aceh free pasung (aceh bebas pasung) program in 2010 as part of a broad mental health service community development program, which means that the aceh government has shifted its attention to protecting the human rights of persons with mental disabilities and become a pioneer in indonesia. 5 governor irwandi yusuf then continued this program as one of the programs in his second term as governor of aceh with the target that by 2022 aceh will be free from the practice of shackling. 6 inspired by the program initiated by the government of aceh, the ministry of health of the republic of indonesia initiated a similar program at the national level, which was carried out in 2014 with the target that indonesia will be free from shackling by 2019. however, this program was considered less successful and received a lot of criticism from various parties because it only focuses on the efforts to release the shackling victim and does not take further action by providing guarantees of access to adequate mental health services. as a result, people with mental disabilities are being shackled again by their families and community. 7 an international human rights law that particularly governs people with disabilities, including those with mental disorders, is the convention on people with disabilities. indonesia is responsible for defending people with mental disabilities at the national and regional levels as a state party to the crpd. also, indonesia must enact laws, policies, and practices that discriminate against people with mental disabilities and alter or abolish them. local governments are encouraged to create disability rules so that the convention's obligations are understood and followed in indonesia's 34 provinces. however, until now, only 28 regions in indonesia have regulations governing the rights of persons with disabilities. 8 meanwhile, in aceh, the draft qanun concerning disability rights is still being drafted. 1 human rights watch, “living in chains: shackling of people with psychosocial disabilities worldwide”, (2020). 2 ibid. 3 ibid. 4 ibid. 5 ibrahim puteh, m marthoenis and harry minas , “ aceh free pasung: “releasing the mentally ill from physical restraint”, international journal of mental health system, (2011), 5:10. doi: 10.1186/1752-4458-5-10 6 waspadaaceh.com “tahun 2022, penderita gangguan jiwa di aceh bebas dari belenggu pasung”, august, 31, 2018, available online https://waspadaaceh.com/tahun-2022-penderita-gangguan-jiwa-di-aceh-bebas-dari-belenggu-pasung/ 7 felani, isnenningtyas, ham penyandang disabilitas mental di panti rehabilitasi sosial, komisi nasional hak asasi manusia, (2018), p. 33. 8 first report of the republic of indonesia on the implementation of the united nations convention on the rights of persons with disabilities, (2016,. p. 7. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 31 based on the above facts, the problem is formulated as follows: (1) how is the regulation regarding the human rights of persons with mental disabilities according to international and national law? (2) what is the indonesian government's responsibility in protecting the rights of persons with mental disabilities? (3) what factors hinder the fulfillment of the human rights of persons with mental disabilities in indonesia? the research method refers to normative juridical accompanied by empirical research by analyzing a legal fact by looking at the reality of implementation in the field and applying laws and regulations as positive legal provisions, then connected with facts found in a certain area as the object of research. 9 the data from this study were obtained through library research and field research. data were obtained by studying international agreements, laws and regulations, literature, and other official documents, then by obtaining direct data from the research object through direct and online interviews with informants and respondents. the novelty of this research is to investigate the implementation of human rights protection for persons with a mental disability who are being shackled and its challenges in indonesia. the research contributes to the finding that implementing laws and regulations in indonesia and aceh province relating to disability and mental health are not yet fully in line with the crpd, despite indonesia's unconditional ratification of the crpd convention. however, no international, regional, or local cooperation has been aimed at eliminating the practice of shackling, particularly in aceh province, indonesia. there has been some progress, although it is not yet fully maximized and in line with the crpd. b. discussion 1. regulations regarding the human rights of persons with mental disabilities according to international law and national law a. convention on the rights of persons with disabilities concerning the shackling issue, the crpd does not have a provision related directly to the shackling issue, but it does contain provisions that relate to the rights that potentially be violated concerning shackling, for instance, the right to health, right to liberty, and security of the person, freedom from torture or cruel, inhuman or degrading treatment or punishment, and the right to live in the community. 10 the lack of language specifically relating to people with mental illness in the international bill of rights and other conventions has long hindered the application of these instruments to people with mental disabilities. 11 but, none of them were binding, and none adopted a human rights approach to disabilities. 12 this prompted the international community to issue a specific convention to protect the rights of persons with disabilities, including persons with mental disabilities, after going through a long process. the convention protects the rights of the world's fastest-growing minority, estimated at over one billion people with disabilities. 13 the definition is based on the strong notion that there is nothing wrong with persons with disabilities and that the configuration of society needs to be restructured to enable them to participate in society effectively, have equal access to rights and manage their impairments. the committee then issued its observations regarding developments made by state parties. in implementing the convention, states must fully involve the representatives of civil society, especially persons with disabilities, to monitor the implementation process of the convention. states parties that ratified the optional protocol to the crpd recognized the competence of 9 abdulkadir muhammad, hukum dan penelitian hukum, bandung: pt. citra aditya bakti, (2004), p.134. 10 op.cit, human rights watch. 11 carla a. arena ventura, “international law, mental health and human rights”, the center for civil & human rights, university of notre dame, (2014). 12 arlene s. kanter, the development of disability rights under international law: from charity to human rights, routledge, (2015), p. 21. 13 ibid. shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 32 the committee to examine complaints from individuals and the decisions of the committee will be published. so far, crpd committee has issued seven general comments on several articles in the crpd. 14 b. laws and regulations regarding shackling and the protection of the human rights of persons with mental disabilities in indonesia indonesia's obligation to protect, respect, and promote the rights of persons with disabilities since ratifying the crpd is stated in several relevant laws and regulations to protect the human rights of persons with mental disabilities, both at the national and regional levels. 1. law number 18 the year 2014 concerning mental health based on law no. 18 of 2014, which regulates mental health, it positions the responsibility of the central government within the national scope to provide facilities for mental health to remote areas through systemic integration of the health of a person's soul in public services regarding health with care services at affordable prices and distances as a maximum availability for people with disabilities who have mental disorders. there is also a requirement for training a sufficient number of professionals in mental health. this provision also focuses on a community-based facility many people can access. its implementation still refers to government monitoring regarding the standardization of treatment and licensing of health services. the guarantee fulfilled by this regulation is to provide a person with complete information related to mental health or also referred to as transparency, as a form of protection against exploitation, violence, and threats of abandonment. this regulation is merely part of strengthening a person's awareness and eliminating labeling that leads to discrimination against people with disabilities, with the hope of building a positive impact on the mass media to frame the good things about people with disabilities. then this law also has the threat of sanctions in the criminal realm imposed on intentional acts committed by someone to commit violence, neglect, or confinement, as well as acts that are not in line with the substance of human rights that are upheld as contained in article 86 of the mental health law for persons with mental disabilities. 2. law number 8 the year 2016 concerning persons with disabilities according to article 1 point 1 of law no.8, based on section persons with disabilities (from now on referred to as disability law), a disabled person is anyone who has long-term physical, intellectual, psychical, or sensory restrictions and who may encounter barriers and difficulties in their interactions with others while exercising equal rights. this rule's definition of people with disabilities is consistent with the one used by the crpd. in contrast, "individuals with mental problems" are defined in the clarification of article 4 paragraph (1) point c as individuals who have disruptions in the function of cognition, emotion, and behavior. the law also contained criminal provisions to protect persons with disabilities from human rights violations in article 145. regarding shackling, the law includes the provision in article 6 on the right to life, which includes the right to be free from neglect and shackles. thus, shackling violates the right to live according to law number 8 of 2016. in addition to shackling issue, the elucidation of article 9 point g of the disability law also states that one form of pressure, violence, persecution, discrimination, and/or confiscation or expropriation of property is shackling. 3. regulation of the minister of health number 54 the year 2017 concerning the handling of shackling for persons with mental disorders this ministerial regulation issued by the minister of health is a derivative rule of the mental health law, specifically regulating shackling. in the considerations contained in the 14 committee on the rights of persons with disabilities, https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 33 regulation of the minister of health number 54 the year 2017, concerning the handling of shackling for persons with mental disorders, it is stated that shackles carried out on people with mental disorders are actions contrary to human values and are also gross violations of human rights. 4. regulation of the minister of social affairs number 12 the year 2018 concerning guidelines for prevention and handling of shackling for persons with mental disabilities this regulation is addressed to ministries/agencies, district/city local governments, and the public to serve as guidelines in preventing and dealing with the shackling issue. prevention is carried out through socialization and education, advocating on shackling, and ensuring that persons with mental disabilities are registered in the national health insurance, independently registered, as wage earners, or as contribution assistance recipients. regarding handling shackling for persons with mental disabilities, the government, local governments, and the community carry out handling by doing outreach and social rehabilitation. 2. the government of indonesia’s responsibility in providing protection for the human rights of persons with mental disabilities indonesia has ratified the crpd through law number 19 the year 2011 concerning the ratification of the convention on the rights of persons with disabilities. thus, indonesia has a legal obligation and the crpd also applies within indonesian jurisdictions to protect, promote and fulfill the rights of persons with disabilities. in addition, indonesia is also obliged to make regulations that are in line with the crpd. apart from the protection provided in the mental health law, the law is not fully in line with crpd and contains several provisions that can potentially cause problems. for example, allowing others to consent to medical treatment in the capacity of persons with mental disabilities if they are deemed "incapable of making decisions" without going through a judicial process as outlined in article 21 paragraph (3) in mental health law. suppose another person decides based solely on the perception that the individual cannot make a decision. in that case, this is considered discrimination against persons with mental disabilities and thus against the crpd. however, it is impossible to determine the individual's views when deciding. in that case, decisions are made using a supported decision-making system based on the best considerations of will and preference and the best interest of the individual, both as to what services are appropriate to provide and how the wills and preferences of the individual are determined. then article 22 of the mental health law also allows medical personnel to force treatment on persons with mental disabilities whose thoughts and/or behaviors indicated as dangerous can endanger themselves and others. these two articles contradict the crpd. the definition is found in article 1 point 3 of the mental health law. the definition of odgj in this law does not include environmental causes that hinder persons with mental disabilities. at the same time, the crpd considers disability as a concept that develops and results from limited abilities, interactions, and behavioral barriers from the environment that hinder the full and effective participation of persons with mental disabilities. in other words, in terms of crpd, there is nothing wrong with people with mental disabilities, but the problem lies in the environment that prevents people with mental disabilities from developing and fully participating, which often makes people with mental disabilities excluded and their rights neglected. the national commission for disabilities (knd) was formed through presidential decree number 68 of 2020. the presidential regulation regulates the selection, composition, and function of the national commission for disabilities as mandated in the disability law. however, this raises problems because, in disability law, knd is directly responsible to the president. at the same time, presidential decree number 68, the year 2020, places knd shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 34 under the auspices of the ministry of social affairs. this is contrary to what is mandated by the disability law and can interfere with the institution's independence in carrying out its functions. a. government responsibilities relating shackling indonesia's government and local governments have tried to eradicate this practice, one of which is through the aceh free pasung program. it is not advanced or sophisticated. this program releases persons with mental disabilities from pasung, takes them to the hospital, takes good care of them, and returns them. however, this program's underlying factors and consequences make it special. this program is the first program in indonesia to release many people from shackling. 15 although the number of shackling victims has decreased, this practice still exists in indonesia, especially in aceh. however, kimberly clair asserts that recent efforts in indonesia to safeguard the human rights of people who are chained, shackled, or imprisoned due to their mental illness offer a crystal-clear illustration of the disaggregated strategy. 16 during his visit in march 2017, un health expert, dainius puras, urged the indonesian government to "step up" its campaign against pasung and ensure that shackles are not "replaced by other forms of restraint and confinement." which violate human rights. 17 currently, aceh does not have a specific legal regulation to deal with the issue of shackling, both at the provincial and district/city levels, as is in west nusa tenggara province, which has the regulation of the governor of west nusa tenggara number 22 the year 2013 concerning the handling of pasung in west nusa tenggara province. aceh province also does not have a qanun that specifically regulates mental health and a qanun that regulates persons with disabilities. however, there is a provision regarding mental health in qanun number 4 in the year 2010 concerning health. an example of a province with a regional regulation (perda) on mental health in west java. it is also the first province to have a regional regulation on mental health in indonesia. regarding the regulation regarding persons with mental disabilities, there is a provision concerning social welfare in aceh qanun number 11 2013. in this qanun, the aceh government focuses on providing social assistance to several groups, including persons with mental disabilities. however, until now, there has been no government regulation for implementing social welfare services for persons with disabilities as mandated in article 37 of qanun number 11 of the year 2013. the definition of persons with disabilities adopted in this qanun is: "every person with a physical and/or mental disorder that can interfere with or is an obstacle for him to perform properly, consisting of persons with physical disabilities, persons with mental disabilities, and people with physical and mental disabilities." the definition of persons with disabilities in this qanun is not clear. it still uses the offensive term “handicapped” and views that a person's disability causes them to be hindered from doing things or activities as they should. this is contrary to the view of the crpd, which sees disability as a problem that arises due to the environment and society's treatment of persons with disabilities, not on their disability. as for the rules regarding shackling, article 75 paragraph (1) of the qanun number 4, the year 2010, concerning health, imposes an obligation on the aceh government to eradicate the practice of shackling and eliminate public stigma against persons with mental disabilities. this is lamentable because aceh is the first province in indonesia to have a free shackling 15 marthoenis, marion aichberger, ibrahim puteh, roslaini, meryam schouler-ocak, “releasing the mentally ill from physical restraint: an experience from a developing country”, conference paper, (2012): 293-295. 16 james gomez & robin ramcharan. (2019). national human rights institution in southeast asia, palgrave macmillan, (2019), p. 234-235. 17 report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his mission to indonesia. (2018). a/hrc/38/36/add.1. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 35 program. this policy should be poured into a separate legal rule to make its implementation more effective. in dealing with shackling in aceh, especially in aceh besar district, through an interview via whatsapp with dr. deni yaneva, m.kes, for the case of shackling in aceh besar district, precisely in kuta baro, there are human rights-based programs such as day care for persons with mental disabilities, through which families can entrust their family members with mental disabilities. with this program, it is hoped that there will be no reason to shackle their family members because there is no one to look after them. this program is similar to the concept of pendidikan anak usia dini (paud), where persons with mental disabilities can also carry out activities with other persons with mental disabilities. 18 3. factors hindered to the fulfillment of the rights of persons with mental disability shackling is considered an iceberg phenomenon. although it has been banned since 1977, this inhumane practice is still common today and is carried out in different ways. from the interviews through the whatsapp application with dr. deni yaneva, and m. kes, a few factors led to shackling, especially in aceh besar, were: a. economic constraints faced by the patient's family. b. violent behavior. c. sometimes, the patient does not want to take medication. d. relapse, after being declared cured by the mental hospital and sent back home again, the patient does not want to take medicine and thus has a relapse. e. the patient’s family lacks knowledge about mental health and how to deal with patients when they relapse. apart from the incompatibility of the law with the crpd and the absence of legal regulations or regulations regarding mental health and the rights of persons with disabilities, especially in aceh, according to the results of an interview with dr. deni yaneva, m.kes and robby mulia manurung from the national human rights commission (komnas ham) of the republic of indonesia aceh representative office, there are several obstacles in fulfilling people with mental disabilities, especially in the handling of shackling. first, the lack of coordination and cooperation in the community is due to the view that health workers can only handle psychiatric problems or those related to people with a mental health conditions. then the stigma strongly attached to persons with mental disabilities is also a big challenge for handling the practice of shackling and fulfilling the rights of persons with mental disabilities. this stigma tends to be high and then becomes the cause of discrimination which is also part of the issue faced by persons with mental disabilities in indonesia, especially in aceh. they are considered dangerous and different from other human beings. they must be shackled, isolated, discarded, or concentrated in specific places to be accommodated so they do not disturb other people. 19 this also creates a dilemma between protecting the patient himself and the community due to his behavior or protecting the rights of the person with a mental disability. then the lack of knowledge about mental health and how to deal with persons with mental disabilities. this is important because not a few have experienced pasung again by their families after they have been treated and recovered due to their families’ lack of knowledge about handling the behavior of persons with mental disabilities. severe mental disorders such 18 dr. deni yaneva, m.kes, kepala seksi pencegahan dan pengendalian penyakit tidak menular dan kesehatan jiwa dinas kesehatan kabupaten aceh besar, interview on september 26th 2020 by whatsapp call. 19 mulia robby manurung, subkoordinator bidang pelayanan pengaduan komisi nasional hak asasi manusia kantor perwakilan aceh, interview by email on october 1 2020. shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 36 as schizophrenia, bipolar, and depression are common but are often ignored as health problems by the public due to the lack of public awareness of mental health. 20 other obstacles also exist in human resources. many of those who treat people with mental health conditions in pasung are elderly, another thing also lies in the patient's trust in them, and some patients do not want to be treated by someone other than the one who usually treats them. 21 facilities, infrastructure, and mental health workers are not proportional to the number of people with mental disabilities. currently, the indonesian government allocates about 1 percent of the total health budget to mental health. total health spending is about 3 percent of gdp. 22 in aceh besar, dr. deni yeneva added that obstacles related to the covid-19 pandemic generally do not exist. health workers still carry out home visits to monitor the condition of shackling and provide treatment. however, this pandemic has hindered community treatment which cannot be carried out as usual due to the prohibition on mass gatherings. 23 in dealing with shackling in aceh besar, the aceh besar district health office ensures that although shackling still can be found in aceh besar, the government ensures that no one is held in shackling in extreme ways such as being tied up, chained, placed outside the house or in huts and cages, but shackled by being locked up in the house. 24 however, shackling is a practice that cannot be justified, is inhumane, and violates human rights. shackling will not solve any problem used as an excuse by families of persons with mental disabilities to put them in shackling. it also only increases the suffering of people with mental disabilities, both mentally and physically, as a result arising from the practice. because indonesia has not ratified the optional protocol to the crpd, relevant individuals or organizations cannot directly report allegations of human rights violations against them. regarding complaints regarding alleged human rights violations komnas ham aceh representative received a complaint regarding alleged human rights violations against persons with disabilities. this case is the case of a person with a mental disability with the initials ma, a resident of gampong tibang, subdistrict of syiah kuala, banda aceh city, who was shot to death by a suspected member of the syiah kuala police because of endangering the safety of residents and members of the police who wanted to secure him on january 28, 2020. previously, on the same date, ma had slashed a motorcyclist with a machete who happened to pass him on the road. ma also often walks around with a machete on the streets around the tibang and alue naga villages. 25 according to drew et al., one of the reasons why human rights violations continue to occur is that these violations are not reported. 26 the lack of reports on allegations of human rights violations against persons with mental disabilities, although many cases are found in the field, shows no awareness or concern from concerned parties to report alleged human rights violations. drew et al. also stated that the complaint mechanism must be accessible, encouraging and enabling persons with mental disabilities, their relatives, and human rights activists to report human rights violations freely and safely. this lack of reporting also indicates that there are still many people and concerned parties who do not have awareness about mental health, human rights, and persons with mental disabilities. regulations not fully in line with the crpd and its paradigm shift are also obstacles to fulfilling the rights of persons with mental disabilities. the absence of legal rules or qanuns that specifically regulate mental health and the rights of persons with disabilities in aceh is also an obstacle to 20 harry minas, asean mental health system, the asean secretariat, (2016), p. 42. 21 dr. deni yeneva, m. kes, op. cit. 22 insideindonesia.org “the future of mental health care in indonesia” july, 24, 2020, available online https://www.insideindonesia.org/the-future-of-mental-health-care-in-indonesia-6, 23 dr. deni yeneva, m. kes, op. cit. 24 dr. deni yaneva, m. kes, op. cit. 25 mulia robby manurung, op. cit. 26 natalie drew et al,” human rights violations of people with mental and psychosocial disabilities: an unresolved global crisis”, the lancet, (2011), vol, 378, 1664:1675. doi: 10.1016/s0140-6736(11)61458-x lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 37 fulfilling the rights of persons with mental disabilities so that their implementation can be clearer, more effective, and more efficient. c. conclusion laws and regulations in indonesia and aceh province relating to disability and mental health have not been fully in line with crpd, even though indonesia has ratified the crpd convention without any reservation. however, no international, regional, or local cooperation has been aimed at eradicating the practice of shackling, particularly in aceh province, indonesia. there has been some progress, despite not being fully maximized and in line with the crpd. the crpd, with its paradigm shift, should be a guideline to promote, protect, and fulfill people with mental disabilities in indonesia, especially in aceh province. regarding handling shackling in indonesia, especially in aceh, the government has successfully reduced the number of cases of this practice. however, releasing the victims from shackling is insufficient because they can still be found after treatment. there is still a lack of funds and human resources for the mental health sector. other obstacles are found in the community and family environment, such as stigma, discrimination, and inhumane behavior of the community, family, and environment around persons with mental disabilities. lack of public knowledge and awareness about mental health is also an obstacle to fulfilling the rights of persons with mental disabilities. d. suggestion several suggestions can be made related to the subject matter of the discussion. revise provisions in current laws concerning persons with mental disabilities which are not in line with crpd, regarding the definition of persons with mental disorders (odgj) in article 1 point 3 of the mental health law, and article 21 paragraph (3) of law number 18 of 2014 concerning mental health, as well as article 22, comply with the crpd. there is a need for separate legal regulations governing mental health, the rights of persons with disabilities and shackling in aceh following the crpd. ratify the crpd protocol as an effort to maximize the fulfillment of indonesia's responsibility to protect the rights of persons with disabilities by providing a means to convey allegations of human rights violations against persons with disabilities at the international level. greater attention is needed than what has been sought for mental health issues, whether in the form of funds, increased human resources, facilities, or access to health that is affordable, accessible, adequate, and human rights-based. good and collective coordination is also needed between various parties, such as professionals in the mental health field, advocacy organizations working in human rights and persons with disabilities, and the community to protect the rights of persons with mental disabilities. in addition, under international law, involving persons with mental disabilities directly in making decisions for themselves is mandatory. central and local governments must commit to protecting the rights of persons with mental disabilities and eliminate a practice that violates the human rights of persons with mental disabilities, particularly the practice of shackling. shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 38 references abdulkadir muhammad, hukum dan penelitian hukum. bandung: pt. citra aditya bakti, 2004. arlene s. kanter, the development of disability rights under international law: from charity to human rights: routledge, 2015. carla a. arena ventura “international law, mental health and human rights.” the center for civil & human rights university of notre dame, (2014). https://klau.nd.edu/assets/331758/venturamentalhealth.pdf committee on the rights of persons with disabilities. “general comments,” available online https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx felani, isnenningtyas, ham penyandang disabilitas mental di panti rehabilitasi sosial. komisi nasional hak asasi manusia, 2018. first report of the republic of indonesia on implementing the united nations convention on the rights of persons with disabilities (2016). harry minas (ed), asean mental health system. the asean secretariat, 2016. human rights watch “living in chains shackling of people with psychosocial disabilities worldwide,” (2020). ibrahim puteh, m marthoenis and harry minas “aceh free pasung: “releasing the mentally ill from physical restraint.” international journal of mental health system, 5 no. 10, (2011). 10.1186/1752-4458-5-10 ingrid nifosi-sutton, the protection of vulnerable groups under international human rights law. routledge, 2017. insideindonesia.org “the future of mental health care in indonesia” available online https://www.insideindonesia.org/the-future-of-mental-health-care-in-indonesia-6 james gomez & robin ramcharan (eds), national human rights institution in southeast asia. palgrave macmillan, 2019. marthoenis, marion aichberger, ibrahim puteh, roslaini, meryam schouler-ocak “releasing the mentally ill from physical restraint: an experience from a developing country.” conference paper, (2012). marthoenis, sarifah yessi, marion c aichberger, meryam schouler-ocak, “mental health in aceh--indonesia: a decade after the devastating tsunami 2004”, asian journal of psychiatry, vol.19, (2016). doi 10.1016/j.ajp.2016.01.002 natalie drew et al. “human rights violations of people with mental and psychosocial disabilities: an unresolved global crisis.” the lancet, vol. 378, issue. 9803 (2011). https://doi.org/10.1016/s0140-6736(11)61458-x peraturan menteri kesehatan republik indonesia nomor 54 tahun 2017 tentang penanggulan pemasungan pada orang dengan gangguan jiwa. peraturan menteri sosial nomor 12 tahun 2018 tentang pedoman pencegahan dan penanganan pemasungan bagi penyandang disabilitas mental. qanun aceh nomor 11 tahun 2013 tentang kesejahteraan sosial. qanun aceh nomor 4 tahun 2010 tentang kesehatan. https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx https://www.insideindonesia.org/the-future-of-mental-health-care-in-indonesia-6 https://doi.org/10.1016/s0140-6736(11)61458-x lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 39 report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his mission to indonesia, a/hrc/38/36/add.1, (2018). stephen p. marks, lena verdeli, and sandra willis “mental health and human rights: international standards and clinical practice,” in neal s. rubin and roseanne l. flores, (eds), cambridge handbook on psychology and human rights, cambridge university press, (2019). https://doi.org/10.1017/9781108348607.013 undang-undang nomor 18 tahun 2014 tentang kesehatan jiwa. undang-undang nomor 8 tahun 2016 tentang penyandang disabilitas. undang-undang nomor nomor 19 tahun 2011 tentang pengesahan convention on the rights of persons with disabilities (konvensi tentang hak-hak penyandang disabilitas). united nations convention on the rights of persons with disabilities. united nations declaration on human rights. vienna declaration on human rights 1993. waspadaaceh.com “tahun 2022, penderita gangguan jiwa di aceh bebas dari belenggu pasung”, available online https://waspadaaceh.com/tahun-2022-penderita-gangguanjiwa-di-aceh-bebas-dari-belenggupasung/ world health organisation & world bank “world report on disability,” geneva, who, (2011). https://waspadaaceh.com/tahun-2022-penderita-gangguan-jiwa-di-aceh-bebas-dari-belenggupasung/ https://waspadaaceh.com/tahun-2022-penderita-gangguan-jiwa-di-aceh-bebas-dari-belenggupasung/ shackling persons with… m. ya’kub aiyub kadir and dara rizky fadillah 40 81 asean's role in cybersecurity maintenance and security strategy through an international security approach khotimah estiyovionita1, afandi sitamala2 1untirta center of international legal studies (ucils), indonesia, e-mail : khotimahesti8@gmail.com 2untirta center of international legal studies (ucils), indonesia, e-mail: asitamala@untirta.ac.id submitted: apr 05,2022; reviewed: aug 08,2022.; accepted: sept 28, 2022 article info abstract keywords: asean, cybersecurity, cooperation. doi: 10.25041/lajil.v4i2.2556 the development of information and communication technology makes it easier for humans to access everything without being limited by time, space, and distance so that they are connected in one space. given cyberspace's borderless and anonymous characteristics, it encourages the emergence of criminal activities, namely cybercrime. therefore, as a measure to prevent future damage, it requires not only regulatory laws and regulations but also international cooperation between countries is needed. these cooperation efforts can be implemented through the forum of regional organizations, namely asean. until now, many efforts have been made to encourage the improvement of cybersecurity through its various programs. therefore, it is hoped that this increase in cooperation will further strengthen cybersecurity in the region to maintain security stability. a. introduction the increasingly widespread digitalization era has made the world community increasingly accustomed to computerized activities connected online, which can be seen from the large number of people who access smartphones, laptops, computers, and even internet of things (iot) devices. the development of information and communication technology makes it easier for humans to access everything without being limited by time, space, and distance so that they are interconnected with each other in one space where these activities are facilitated by media called cyberspace.1 the characteristics of cyberspace, among others, are not limited by regional boundaries (borderless), and when communicating between users, they can disguise their identity (anonymous). given the characteristics of cyberspace, it encourages the emergence of criminal 1 wasisto raharjo jati, “cyberpsace, internet dan ruang publik baru: aktivisme online politik kelas menengah indonesia”, jurnal pemikiran sosiologi vol. 3 no. 1, januari 2016, p. 26. volume 4 number 2, july-december 2022: pp. 81-90. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil mailto:khotimahesti8@gmail.com asean’s role in cybersecurity maintenance … khitomah e and afandi s 82 activities, namely cybercrime. cybercrime is an unlawful act using information and communication technology targeted at networks, systems, data, websites, and technologies. 2 in addition to being carried out with digital media, cybercrime is also connected to digital communication networks, so connectivity problems make cybercrime more complex to handle. therefore, as a measure to prevent future damage, it is necessary to have laws and regulations governing cybercrime to prevent it.3 criminals indeed target regions or regions with a certain level of vulnerability. for example, in the asean region, based on the international telecommunication union (itu) report entitled global cybersecurity index (gci) in 2020, singapore was ranked first in the level of cybersecurity in southeast asia with a score of 98.52, then successively followed by malaysia 98.06, indonesia 94.88, viet nam 94.59, thailand 86.5, philippines 77, brunei darussalam 56.07, myanmar 36.41, lao p.d.r. 20.34, and cambodia 19.12.4 the assessment of this index is based on five main components, including legal, technical, organizational, capacity development, and cooperation measures. so, it should be a common concern for asean member states to improve the quality of each component. based on an analysis conducted by atkearney shows that first, asean countries, especially indonesia, malaysia, and vietnam, are at risk of becoming the main targets of blockade of suspicious web activity; second, weak policy regulation in asean related to management and capabilities in the field of cybersecurity; third, the suboptimal competence of the human resources of each member state; and fourth, the awareness of corporations or stakeholders is still minimal because it has not made it a business priority regarding the dangers posed by weak cybersecurity, so there is no holistic handling of cyber resilience.5 in addition, cybersecurity is a significant challenge in this era of digitalization because today, we live in a world where data or information is stored in digital form, so data privacy and security will always be a priority for any organization. the risk of suboptimal handling of cybercrime in the asean region has the potential to negatively impact the region's stability, especially on economic growth. this is considering that the asean region has a combined gdp of more than usd 3.11 trillion, making it one of the seventh-ranked largest markets in the world and has a total population of 663.47 million, the third most populous market in the world.6 in addition, it is considering the results of an analysis from atkearney in 2018 that asean's potential in the digital economy in 2025 is predicted to reach an increase of up to 1 trillion dollars to the state budget and even continue with the development of digital services such as the financial and commercial sectors.7 cybersecurity experts project the net cost of cybercrime to grow by 15 percent per year over the next five years, reaching usd 10.5 trillion annually by 2025, up from usd 3 trillion in 2015.8 the current condition is all digital. suppose the government is not quick to respond to the risks that exist results in the threat of stability of a country. whereas a nation is said to be strong depends not only on how big the economy or how strong its military is but also on the values it offers to the world, one of which is mastery of technology. muhamad rizal and yanyan m. yani gave their opinions in the journal of asean studies, which read: “a nation's power is 2unodc, “university module series: cybercrime”, february 2020, https://www.unodc.org/e4j/en/cybercrime/module1/keyissues/cybercrime-in-brief.html, diakses pada 7 september 2022. 3 khanisa, “a secure connection: finding the form of asean cyber security cooperation”, journal of asean studies, vol.1 no.1 (2013), p. 41–42. 4 international telecommunication union (itu), “global cybersecurity index 2020”, p. 25-27. 5kristiani virgi kusuma putri, “kerjasama indonesia dengan asean mengenai cyber security dan cyber resilience dalam mengatasi cyber crime”, malang: fh universitas brawijaya, rewang rencang : jurnal hukum lex generalis. vol.2. no.7 (2021). 6 james tan et al., “asean cyberthreat assessment 2021”, p.10. 7 trisa monika tampubolon dan rizki ananda ramadhan, “asean personal data protection (pdp): mewujudkan keamanan data personal digital pada asia tenggara”, padjadjaran journal of international relations (padjir) vol. 1 no. 3, januari 2020 (270-286) doi: 10.24198/padjir.v1i3.26197, p.272. 8 james tan et al., loc.cit, p. 8. https://www.unodc.org/e4j/en/cybercrime/modulelampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 83 neither just about how big the economy is nor how strong the military is. however, it is also about the values it offers to the world, and one of them is its mastery of technology.” 9 given that cybercrime is a transnational crime and the lack of handling of asean member state governments in handling cybercrime, it reflects that there is a need for cooperation of law, politics, and security, as well as an increase in cybersecurity facilities to minimize the losses that will occur.10 therefore, the multilateralism approach is an effective solution, and this is in line with the results of iii c 2000 millennium congress and the congress un on the prevention of crime and the treatment of fugitives offenders, which emphasizes that to prevent and overcome cybercrime that is transnational crime requires international cooperation efforts between countries in the world.11 based on the background that has been stated, the author formulates a formulation of the problem, namely, how is asean's strategy in dealing with cybercrime in the region? this study's method of approach is the literature review on cybercrime. sources are obtained using secondary data through research results based on literature research. b. discussion the association of southeast asian nations (asean) is a regional cooperation organization in the southeast asian region founded on august 8, 1967. asean was established to maintain world peace and safety in the southeast asian region.12 currently, asean consists of 10 countries: indonesia, malaysia, singapore, thailand, the philippines, brunei, vietnam, laos, myanmar, and cambodia. asean has three pillars which include the asean politicalsecurity community (apsc), the asean economic community (aec), and the asean socio-cultural community (ascc).13 the discussion about cybersecurity intersects with one of the asean pillars, apsc. with the apsc, it is hoped that asean member states can coordinate well in facing the region's global challenges and emerging threats. one of the global challenges and threats around security that is an essential issue in the region is cybersecurity-related. this issue is inseparable from the development of information and communications technology (ict) in asean, based on the asean ict master plan in 2011. it contains details about how asean wants to develop its ict sector. then in its development, asean has made considerable progress in the development of the ict sector by incorporating ict development as one of the connectivity aspects in its current master plan for the building of asean community 2015, which contains encompasses physical, institutional, and people-to-people connectivity with ict as an integral part of physical connectivity. 14 however, it turns out that an important aspect is not paid attention to, namely the security aspect, resulting in the fragility of the ict security system. cyber security has become one of the priorities of leaders in the asean region, especially after the disruption caused by the covid-19 pandemic, which made all elements of society adapt 9 muhamad rizal, yanyan m. yani, “cybersecurity policy and its implementation in indonesia”, journal of asean studies, vol. 4, no. 1 (2016), pp. 61-78, 2016 by cbds bina nusantara university and indonesian association for international relations issn 2338-1361 print / issn 2338-1353 electronic. 10 bima yudha wibawa manopo, diah apriani atika sari, “asean regional forum: realizing regional cyber security in asean region”, belli ac pacis. vol. 1. no.1 juni 2015. 11 bima yudha wibawa manopo, diah atika sari, “asean regional forum: realizing regional cyber security in asean region”, belli ac pacis. vol. 1. no. 1 juni 2015. 12 ahmad syofyan, achmad gusman siswandi, et al., “asean court of justice: issues, opportunities and challenges concerning regional settlement disputes”, journal of legal, ethical and regulatory issues, volume 24, issue 1, 2021, p. 1. 13 asean political-security community blueprint, 2009, p.1. 14 khanisa, “a secure connection: finding the form of asean cyber security cooperation”, journal of asean studies, vol.1,no.1 (2013), p. 43. asean’s role in cybersecurity maintenance … khitomah e and afandi s 84 to the era of digitalization because cyber security plays a vital role in the development of a country's stability. this is in line with one of asean's objectives contained in article 1 of the asean charter, which aims to maintain and enhance peace, security, and stability and further strengthen peace-oriented values in the region. concerning cybersecurity, piet hein van kempen says that: "security may be described as freedom from such phenomena as a threat, danger, vulnerability, menace, force, and attack.15 furthermore, according to lucas kello, cybersecurity has mechanisms for protecting computer operating systems from threats of danger. therefore cybersecurity can be understood when there is no illegal intrusion into computer systems. 16 based on the results of research conducted by the asean desk, several cyber threats stand out in 2020 and beyond, including: 1. business e-mail compromise is a mode of fraud by posing as the victim's business partner company and aiming to obtain funds that should be directed to the actual business partner company. 2. phishing is an attempt to obtain information about someone's data by phishing techniques. the data targeted for phishing are personal data (name, age, address), account data (username and password), and financial data (credit card information, accounts). 3. ransomware can be defined as a mass extortion of personal data or information stolen to seek profit from the victim in the form of money. 4. e-commerce data interception is a threat to confidentiality in the form of information intercepted so that people who are not entitled can access the computer where the information is stored. 5. crimeware-as-a-service (caas) is malware software that encrypts files and documents from one of the computers to the entire network. the perpetrator will ask the victim for a ransom to be able to access the network that has been taken over again. spyware, phishing kits, browser hijackers, keyloggers, and more are available to attackers through caas. 6. cyber scams are fraudulent schemes by using fake websites to steal personal information and misuse it. 7. cryptojacking is a type of cybercrime in which hackers use the victim's device secretly to take advantage of cryptocurrencies. in general, asean member states have devised specific strategies for improving cybersecurity, such as implementing cybersecurity policies and laws to ensure the openness of internet platforms to enhance innovation and the economy while maintaining security in cyberspace and protecting the personal information and privacy of their citizens from being misused. for example, in the three countries in asean, firstly indonesia, to protect information security in cyberspace, issued law no. 11 of 2008 concerning information and electronic transactions which is the basis for the formulation of regulations and policies related to information security, then related to the protection of personal data and privacy regulated in ministerial regulation no. 20 of 2016 which is now indonesia as of september 20, 2022, the personal data protection law has been passed by house of representatives. 17 in addition, the indonesian government also established a national cyber and encryption agency (bssn) responsible for preventing cyber-attacks and responding with an urgent strategy. 15 piet hein van kempen, “four concepts of securityça human rights perspective”, human rights law review 13:1(2013), 1-23, doi:10.1093/hrlr/ngs037, downloaded from http://hrlr.oxfordjournals.org/ at universidad de costa rica on july 15, 2013. 16 lucas kello, “the meaning of the cyber revolution: perils to theory and statecraft”, international security, vol. 38, no. 2 (fall 2013), pp. 7–40, doi:10.1162/isec_a_00138 17 jirapon sunkpho et al., “cybersecurity policy in asean countries”, information institute conferences, las vegas, nv, march 2018, p. 3. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 85 furthermore, singapore has also made efforts to improve cybersecurity through its various programs, which in 2005 began with the launch of planning in the form of a cybersecurity masterplan. infocom security masterplan in 2007. then continuing with the launch of the national cyber security masterplan and the national cyber security research and development program in 2013, in the same year also, singapore pioneered the establishment of the national cyber security center, which was established as a central body to supervise and coordinate all aspects of cybersecurity for the country. in its development, in 2015, a cyber security agency was formed. further on its regulatory aspects, in 2017, singapore amended the existing computer abuse and cybersecurity act to address the increasing scale and transnational nature of cybercrime.18 a comprehensive approach to improving cybersecurity in singapore is reflected in the renewal of the national cyber security master plan, cyber watch centre, and threat assessment centre. singapore established cyber security agencies (csas) in all sectors as private and public partners. as for the cybersecurity handling measures carried out by the malaysian government through a series of existing developments, through the national security emergency response centre (niser) 2006 was given the power to implement the national cyber security policy (ncsp) policy to make malaysia's it system "safe, resilient and independent." then niser changed its name to cyber security malaysia was parked under the ministry of science, technology, and innovation (mosti).19 in its policy implementation, malaysia implemented eight procedures in the national cyber security framework, which consists of regulation and control, technology, and cooperation between public-private, institutional as well as worldwide aspects.20 in addition, malaysia is also active in organizing prevention programs, such as the cyber security awareness for everyone program. considering the need for a forum to accommodate aspirations related to cybersecurity issues, the malaysian government also provides email hotlines at (cyber999@cybersecurity.my) in the fight against cybercrime so that this can help local law enforcement agencies.21 nonetheless, another problem in a nation's handling of cybercrime is a global phenomenon. every country would be unable to fight this crime without the cooperation of the whole world. cooperation between countries must reduce and control these cybercrimes before they become out of control. in the face of cybercrime of a multi-jurisdictional nature, there must be a quality improvement, especially with the latest technology that continues to increase. it should be of particular concern for each asean member state to prepare preventive measures for cybercrime. 1. asean's steps in managing cybersecurity so far, cybercrime handling tends to bilateral relations whose implementation is still limited. in this case, it can be understood that the concept of bilateral relations is a traditional approach, so the scope of security is defined by geopolitical terms and limited to relations between countries that intersect with nuclear use and military strategy issues. in summary, traditional security interprets a threat related to the state and physical threats from outside. international cooperation can enhance cybersecurity.22 thus, its development will give rise to initiatives, and 18 muhammad fikry anshori, rizki ananda ramadhan, “kepentingan singapura pada keamanan siber di asia tenggara dalam singapore international cyber week”, padjadjaran journal of international relations vol. 1 no. 1, mei 2019, p. 38, doi: 10.24198/padjir.v1i1.21591. 19 jirapon sunkpho et al., loc.cit, p. 3-4. 20 azian ibrahim, noorfadhleen mahmud, et al., “conference paper: cyber warfare impact to national security malaysia experiences”, fgic 2nd conference on governance and integrity 2019, kne social sciences, p. 211. 21 trisa monika tampubolon, rizki ananda ramadhan, “kepentingan singapura pada keamanan siber di asia tenggara dalam singapore international cyber week”, padjadjaran journal of international relations vol. 1 no. 3, januari 2020, doi: 10.24198/padjir.v1i3.26197 p. 219. 22 bedriansyah zaini "transformasi keamanan internasional", 30 sep 2020, https://news.detik.com/kolom/d5194202/transformasi-keamanan-internasional., diakses pada 15 november 2021 asean’s role in cybersecurity maintenance … khitomah e and afandi s 86 therefore when difficulties arise in the enforcement of cyber incidents, it should not be ignored. 23 in line with this, according to the coordinating minister for political, legal, and security affairs of indonesia, wiranto, on the occasion of the 6th meeting of attorneys general /ministers of justice and minister of law on the treaty on mutual legal assistance in criminal matters (among like-minded asean member countries) the eradication of transnational criminal acts must be carried out immediately by a country.24 otherwise, this will damage the political process, weakening security, endangering society, hindering economic development, and hindering the government of a country that is already doing well.25 international law plays a role in the principle of regulating behavior among international actors, not least in the context of technological advances, therefore in also playing a role in the development or dissemination of emerging technologies in response to the need to protect the international community from excesses, possible disasters, even risks posed by technology. 26 realizing that the handling of cybersecurity must be done through international cooperation, asean, as a regional organization with a basis or foundation in preparing activities or agendas, can determine the role of each member state. this can be seen from the existence of the asean charter, which is binding to provide legal status and institutional framework to compile values and regulations to set targets for asean to present accountability and fulfillment. so after realizing that asean has a vital role in the region, at a later stage, the question arises what challenges are faced by asean in handling cybersecurity? through several analyses of various problems in the region, it was found that the problem is contained in the asean body itself and external asean, especially in the coordination of problem-solving. one factor that hinders it is the inconsistency of member states in an effort to implement the framework that has been prepared through the institutions they have formed. on the other hand, the external challenges faced are increasingly complex, especially regarding transnational crimes.27 the commitment to maintaining cybersecurity in the region is seen at several meetings, such as the asean ministerial meeting on transnational crime (ammtc), asean telecommunications regulators council (atrc), asean senior officials meeting on transnational crime (somtc), senior dan officials meeting on social welfare and development (somswd). in addition, the implementation of the cybersecurity maintenance and security strategy within the framework of multilateral cooperation can be seen in the asean regional forum (arf) through the asean political-security community (apsc) blueprint in sub chapter b.4.1. it is about an agreement to increase cooperation in nontraditional threats, specifically addressing transnational and cross-border crime issues. the discussion of cybercrime is contained in article xvii.28 in this regard, in 2006, arf established arf on cybersecurity initiatives related to the discussion of cybercrime in asean, which was then outlined in asean's cooperation on cybersecurity and against cybercrime. the asean regional forum (arf) was established in 1994, which aims to encourage constructive dialogue and consultation on political and security issues of common concern and interest, as well as positively contribute to confidence building and preventive diplomacy in the 23 ian yuying liu, “state responsibility and cyber attacks defining due diligence obligations”, iv indonesian journal of international & comparative law 191-260 (april 2017) issn: 2338-7602; e-issn: 2338-770x http://www.ijil.org 24 afandi sitamala, “indonesia as non-permanent member of united nations security council, guarding the peace and stability in asean,” lampung journal of international law 2, no. 2 (august 13, 2020): 97–102, https://doi.org/10.25041/lajil.v2i2.2037. 25 kementerian hukum dan hak asasi manusia republik indonesia, menkopolhukam ajak negara asean tingkatkan kerjasama mla dalam masalah pidana, https://portal.ahu.go.id/id/detail/75-berita-lainnya/2234-menkopolhukam-ajaknegara-asean-tingkatkan-kerjasama-mla-dalam-masalah-pidana, diakses pada 22 september 2022. 26 emmy latifah, moch najib imanullah, “the roles of international law on technological advances”, brawijaya law journal vol.5 no 1 (2018): culture and technological influence in regulation, doi: http://dx.doi.org/10.21776/ub.blj.2018.005.01.07. 27 suwarti sari, “peran indonesia dalam implementasi asean political security community”, p. 28. 28 asean political security community (apsc). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 87 asia-pacific region.29 in this case, there is a difference with the concept of security cooperation by the north atlantic treaty organization (nato), which is synonymous with using military force. at the same time, the arf tends to dialogue and engagement as a way of preventing conflicts in the region.30 the arf on cybersecurity initiatives is part of asean's mechanism in dealing with cybercrime contained in asean's cooperation on cybersecurity and against cybercrime. the arf on cybersecurity initiatives began to be implemented in 2006 through a joint statement at a meeting in malaysia and was reaffirmed in the arf statement on cooperation in ensuring cyber security in phnom penh on 12 july 2012. the realization of the joint statement is then implemented in the form of various training at the regional level, with one of the focuses being how a country responds and coordinates when cyber incidents occur.31 in order to follow up on this cooperation, various international meetings were held in addition to the arf, such as the asean ministerial meeting on transnational crime (ammtc), the asean senior officials meeting on transnational crime (somtc), the asean ministerial conference on cybersecurity (amcc), and the asean telecommunications and it ministers meeting (telmin). asean somtc aims to implement the comprehensive partnership between asean and the united nations. on november 19, 2011, asean leaders and the un secretary met to discuss the joint declaration in bali, indonesia. regional meetings continue to increase asean's capacity to address the growing number of cyber threats in the asean region. then the asean ministerial conference on cybersecurity (amcc) the meeting was held in singapore on october 11, 2016. in its development, singapore held the asean cyber capacity program to ensure that the ability of asean member countries can be increased in dealing with cyber security issues. to that end, four asean mechanisms look to aspects of cybersecurity and cybercrime, namely: the asean ministerial meeting on transnational crime (ammtc); asean telecommunications and it ministers meeting (telmin); the asean regional forum (arf), and the asean senior officials meeting on transnational crime (somtc). starting from regional news, issues that are then analyzed will be discussed in various asean forums to establish cooperation in transnational crime, including cybercrime. somtc then implements the ammtc plan.32 the framework contained in the asean regional forum work plan on security of and in the use of information and communications technologies (ict) document on may 7, 2015, contains several goals to be achieved through a work plan as a means to promote a peaceful, safe, open, and mutually cooperative ict environment and to prevent conflicts and crises by developing trust between arf member states and capacity building. in its development through the arf, asean continues to follow up on cybersecurity cooperation using international global with china, japan, the european union, the united states, australia, canada, india, new zealand, russia, and south korea. so that asean cooperation can strengthen the country's security against the dangers of cyber aggression. the framework contained in the asean regional forum work plan on security of and in the use of information and communications technologies (ict) document on may 7, 2015, contains several goals to be achieved through a work plan as a means to promote a peaceful, safe, open, and mutually cooperative ict environment and to prevent conflicts and crises by developing trust between arf member states and capacity building. in its development through the arf, asean continues to follow 29 michael raska, benjamin ang, “cybersecurity in southeast asia”, paris: asia centre & dgris, 2018, p. 2. 30 david putra setyawan, arwin datumaya wahyudi sumari, “diplomasi pertahanan indonesia dalam pencapaian cybersecurity melalui asean regional forum on cybersecurity initiatives”, jurnal penelitian politik volume 13 no. 1 juni 2016, p. 4. 31 ibid, p. 5. 32 ah kannaby, “prospek implementasi asean cybersecurity”, https://repository.unair.ac.id/102829/4/4.%20bab%20i%20pendahuluan.pdf, 2020. asean’s role in cybersecurity maintenance … khitomah e and afandi s 88 up on cybersecurity cooperation using international global wit h china, japan, the european union, the united states, australia, canada, india, new zealand, russia, and south korea. so that asean cooperation can strengthen the country's security against the dangers of cyber aggression. c. conclusion asean, as a forum for cooperation for member states, plays a critical role in realizing cybersecurity. therefore, asean must improve its holistic handling of cyber resilience by strengthening the framework and work plan conceived together. it is necessary to embrace countries that are still passive so that cybersecurity can improve positively. on the other hand, cooperation between dialogue partnerships such as japan, china, america, and several other countries is not limited to agreements but also requires a review of the components needed to encourage the success of cybersecurity resilience in asean. in addition, the cyber issue itself is still a struggle for asean because it is a new issue, so extra efforts are still needed to attract member states. references afandi sitamala, “indonesia as non-permanent member of united nations security council, guarding the peace and stability in asean,” lampung journal of international law 2, no. 2 (august 13, 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(2013): 41–53. https://ir.binus.ac.id/files/2013/08/4.pdf. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 89 latifah, emmy, moch najib imanullah, “the roles of international law on technological advances”, brawijaya law journal: culture and technological influence in regulation vol.5 no 1 (2018): 102–116. http://dx.doi.org/10.21776/ub.blj.2018.005.01.07. liu, ian yuying, “state responsibility and cyberattacks defining due diligence obligations”, iv indonesian journal of international & comparative law (2017): 191-260. manopo, bima yudha wibawa, diah apriani atika sari, “asean regional forum: realizing regional cyber security in asean region”, belli ac pacis. vol. 1. no.1 (2015): 44-51. https://doi.org/10.20961/belli.v1i1.27366. putri, kristiani virgi kusuma “kerjasama indonesia dengan asean mengenai cyber security dan cyber resilience dalam mengatasi cyber crime”, jurnal hukum lex generalis. vol.2. no.7 (2021): 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melalui asean regional forum on cybersecurity initiatives”, jurnal penelitian politik vol. 13 no. 1 (2016): 1-20. https://doi.org/10.14203/jpp.v13i1.250. sunkpho, jirapon, sarawut ramjan, chaiwat oottamakorn, “cybersecurity policy in asean countries”, information institute conferences, las vegas, nv (2018): 1-6. syofyan, ahmad, achmad gusman siswandi, idris, huala adolf, “asean court of justice: issues, opportunities and challenges concerning regional settlement disputes”, journal of legal, ethical and regulatory issues, volume 24, issue 1 (2021): 1a-1f. https://www.abacademies.org/articles/asean-court-of-justice-issues-1544-0044-24-1632.pdf university module series: cybercrime”, february 2020, https://www.unodc.org/e4j/en/cybercrime/module1/key-issues/cybercrime-inbrief.html,. zaini, bedriansyah, "transformasi keamanan internasional", 30 sep 2020, https://news.detik.com/kolom/d-5194202/transformasi-keamanan-internasional. 55 ship sinking policy: a legal choice to eradicate illegal fishing in indonesia faradiba putri rahmadani1, agus triono2 1universitas lampung, indonesia, e-mail : faradibarara09@gmail.com 2universitas lampung, indonesia, e-mail : agus.triono@fh.unila.ac.id submitted:jul 21, 2022; reviewed:aug 22, 2022.; accepted: sept 26, 2022 article info abstract keywords: policy, ship sinking, illegal fishing doi: 10.25041/lajil.v4i2.2670 illegal fishing is a serious problem and is detrimental to indonesia. in overcoming these problem, the indonesian government has taken several policies including the sinking of ships that do illegal fishing. but this policy raises pros and cons. this article discusses government policies against illegal fishing and ship sinking as an effort to eradicate illegal fishing in indonesian waters. this article is a normative legal research with a statutory approach. the data was obtained from searching relevant national and international legal materials and analyzed descriptively. the results showed that the government policies related to illegal fishing were carried out in several ways, namely: formation of task force 115, indonesian marine policy, transshipment policy and ship sinking policy. the implementation of this policy is very dependent on the legal choice of the minister who is in office. the ship sinking policy is considered as a concrete and decisive action that is far more important and effective than other actions. in addition, the policy of sinking ships is carried out based on sufficient preliminary evidence to avoid conflicts with other countries. a. introduction indonesia is a unitary state with islands stretching from sabang to merauke and has a large sea1. with the wide coverage of indonesia's marine area, the international community also 1 efritadewi and jefrizal, ‘penenggelaman kapal illegal fishing di wilayah indonesia dalam perspektif hukum internasional’. volume 4 number 2, july-december 2022: pp. 55-66. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil ship sinking policy … faradiba putri rahmadani and agus triono 56 recognizes indonesia as an archipelagic country defined in unclos 1982. indonesia's status as a maritime country can be proven by the fact that around 70% of indonesia's territory is sea2. as an archipelagic country, indonesia has a wider ocean area than its land area. the diversity of flora and fauna in the indonesian seas is a source of life for the people of indonesia, especially for those who live on the coast. so far, the wealth of marine resources has contributed greatly to development in indonesia in the context of realizing people's welfare3. the high potential of indonesia's sea certainly makes various parties want to take advantage of it. not only indonesian citizens, but foreigners also want to take advantage of indonesia's marine wealth. this natural wealth is what triggers other countries to also take advantage of it by violating the law. one of the biggest threats in protecting indonesian waters today is illegal fishing. illegal fishing is a fishing activity carried out by foreign people or ships in the waters of a country without a valid permit from the country concerned. this illegal fishing activity is carried out by ships flying the flag of a country that is a member of a regional fishery management organization, but does not operate in accordance with the provisions that have been applied in accordance with international law. illegal fishing activities carried out in indonesian waters are carried out with the aim of gaining economic benefits. the opportunity to get these benefits is very large in indonesia because it has very large fishery resources. illegal fishing activities that occur in indonesian waters carried out by foreign fishermen can be interpreted as transnational crimes. because illegal fishing activities are transnational in nature, the actors involved have networks that extend beyond national borders. this illegal fishing activity is a serious problem for indonesia. the rise of illegal fishing activities that occur in indonesian waters is increasingly worrying, based on data from the world food agency or fao, the loss experienced by indonesia per year due to illegal fishing is idr 30 trillion. according to susi, the number is still relatively small. state losses due to illegal fishing per year can actually reach more than 20 billion us dollars or around rp. 300 trillion so that in the last ten years, the total state losses have reached rp. 3000 trillion4. one of these losses is the impact of foreign vessels catching fish in indonesia. the ministry of marine affairs and fisheries has an important role in making policies regarding illegal fishing. one of these policies is the sinking of foreign and ex-foreign ships as a real effort in implementing law no. 45 of 2009 concerning fisheries 5. the existence of law no. 45 of 2009 concerning fisheries is the basis for deciding legal issues related to illegal fishing. the fisheries law adopts several provisions from international law on marine affairs, one of which is unclos 1982 and indonesia has ratified unclos through law no. 17 of 1985. the policy of sinking ships is an effort to eradicate illegal fishing activities and provide a deterrent effect against violations that can harm the country. however, the novelty of this article is the sinking ships in indonesian waters has brought pros and cons from several circles. 2 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. 3 banjarani, ‘illegal fishing dalam kajian hukum nasional dan hukum internasional’. 4 munawaroh, ‘penerapan sanksi penenggelaman kapal asing pelaku illegal fishing oleh pemerintah indonesia (perspektif hukum internasional)’. 5 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 57 many parties support the policy, but not a few also reject the policy. therefore, this paper will examine government policies against illegal fishing and ship sinking as an effort to eradicate illegal fishing in indonesian waters. the method used in this study is normative legal research. normative legal research is legal research conducted by examining library materials or secondary data consisting of primary legal materials, secondary legal materials, and tertiary legal materials. these materials are arranged systematically, studied, then a conclusion is drawn in relation to the problem under study. b. discussion 1. indonesian government policy on illegal fishing the practice of illegal fishing is very troubling to the indonesian government because it causes losses both directly and indirectly. therefore, a government policy is needed in order to eradicate illegal fishing in indonesian waters. the government's policy towards illegal fishing is aimed at eradicating illegal fishing as well as supervising the management of the utilization of indonesia's marine resources. there are various policies made by the government. starting from the making of new rules to the policy of sinking ships that carry out illegal fishing. based on the literal meaning, illegal fishing is fishing or fishing activities carried out illegally. in law no. 45 of 2009 concerning fisheries, the definition of fishing is an activity to obtain fish in waters that are not in a state of being cultivated by any means or means, including activities that use ships to load, transport, store, cool, handle, process, and /or preserve it 6. so that illegal fishing is any activity to get fish that violates the provisions of the fisheries law. in international settings, the definition of illegal fishing is contained in the ipoa (international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing), namely that what is meant by illegal fishing is fishing activities carried out by a country or foreign ship in its waters7 . which is not under its jurisdiction or the activity is contrary to the existing laws and regulations. the fishing is carried out by a ship with the flag of one of the countries that joins as a member of a regional fishery management organization, and fishing is in contravention of the laws of a country or international provisions. so in essence, illegal fishing is fishing activities that are illegal or contrary to the provisions of the national law of the country concerned and international law8. the act of sinking ships by the ministry of maritime affairs and fisheries (kkp) in the context of eradicating illegal fishing is the implementation of a top-down model policy. the keywords of this implementation model are command, change, control and compliance 9. this implementation model occurs in the policy of sinking ships, instructions are given directly from the president and then forwarded by the ministry of marine affairs and fisheries by ordering task force 115 to take firm action. the instructions given are followed by strict control. this tight control has the aim of preventing things that deviate from the instructions in the operationalization process. 6 susanto, j., & masyhar, a.susanto, j., & masyhar, a., ‘law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis | journal of law and legal reform’. 7 borit and olsen, ‘evaluation framework for regulatory requirements related to data recording and traceability designed to prevent illegal, unreported and unregulated fishing’. 8 hikmah, ‘illegal fishing in indonesia from the national and the international law perspectives’. 9 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. ship sinking policy … faradiba putri rahmadani and agus triono 58 under the leadership of president joko widodo, the government continues to make several efforts to eradicate illegal fishing. one of the ways is by establishing a task force for the eradication of illegal fishing (later called task force 115) through presidential regulation number 115 of 2015 10. task force 115 has the task of carrying out law enforcement operations in order to eradicate illegal fishing. to be able to carry out this task, task force 115 through the existing elements has the authority. the authority of task force 115 is to carry out the functions of data and information collection and analysis, prevention, prosecution, and justice, namely: 1) determining operational targets in the context of eradicating illegal fishing; 2) coordinate the process of collecting data and information with related institutions; 3) establish and order elements of task force 115 to carry out the eradication of illegal fishing in areas that have been determined by task force 115; 4) carry out command and control over the elements of task force 115. the elements of task force 115 consist of the ministry of marine affairs and fisheries, the navy, the police, the marine security agency and the attorney general's office of the republic of indonesia. through the elements of task force 115, it is hoped that all existing legal instruments can be optimized. so that law enforcement against illegal fishing becomes effective and efficient. the fact is that crime in the field of fisheries is closely related to other crimes that are transnational in nature. in order to create uniformity in implementation, standard operating procedures for task force 115 have been prepared. illegal fishing does not only have an impact on the economic sector, but also has an impact on the lives of fishermen, one of the causes of poverty for local fishermen is illegal fishing. in terms of the environment, there is damage that causes the ecosystem and marine life to be disturbed. this occurs due to the use of fishing gear on a large scale that is not in accordance with sea conditions. in order to deal with illegal fishing, the indonesian government has made several policies to deal with the practice of illegal fishing. one of the policies during the joko widodo administration was the issuance of presidential regulation no. 16 of 2017 concerning indonesian marine policy. this policy was issued with the consideration that indonesia has a large territorial waters with abundant potential resources. with the abundance of resources in it, it needs to be managed optimally and sustainably. the management of marine resources is carried out in order to realize indonesia's ideals as a world maritime axis and efforts to provide benefits for the welfare of the community. indonesia's maritime policy is a general guideline for marine policy and steps for its implementation through ministry programs and activities designed to accelerate the implementation of the world maritime axis. based on this presidential regulation, indonesia's maritime policy consists of the national policy document and the indonesian marine policy action plan. the national document of indonesian maritime policy will serve as a guideline for government ministries/agencies in planning, implementing and evaluating development in the marine sector. in addition, it is also a reference for the community to participate in carrying out development in the marine sector. 10 tombokan, ‘prosedur penegakan hukum terhadap kejahatan illegal fishing di perairan indonesia berdasarkan undang-undang nomor 45 tahun 2009 tentang perikanan’. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 59 the ministry of maritime affairs and fisheries as the ministry related to indonesia's marine area policy also made a policy in the form of a transshipment ban .11 the policy regarding the prohibition of transshipment is contained in the regulation of the minister of maritime affairs and fisheries of the republic of indonesia no. 56 of 2015 concerning temporary suspension of capture fisheries business licensing in the state fisheries management area of the republic of indonesia and ministerial regulation no. 57 of 2015 concerning capture fisheries business in the state fisheries management area of the republic of indonesia12. this moratorium policy is an effort to control the rampant illegal fishing in indonesian waters. this prohibition encourages ships to first dock at indonesian ports before carrying out export activities. when at the port, the ships have to pay various non-tax state revenues (pnbp) to levies and others. for more details, minister of marine affairs and fisheries regulation no. 57 of 2014 especially in article 37 paragraphs 5, 6 and 9 which regulates the prohibition of transshipment as follows: paragraph 5 reads "every ship transporting fish made in foreign countries is given 2 (two) base ports and for ships transporting fish made abroad for export purposes is given 1 (one) base port". paragraph 6 reads "every fishing vessel and fish-carrying vessel are obligated to land the caught fish at the base port as stated in sipi and sikpi". paragraph 9 reads "every ship that does not land the fish caught at the base port as referred to in paragraph (2), paragraph (3), paragraph (4), paragraph (5), and paragraph (6) will be given a sanction of revocation of sipi or sikpi. some of the reasons the government implements the transshipment policy are as follows: a. indonesia ranks second in the world because it has the longest coastal area, but its marine exports are number five in the world. so it should be if the results of marine fisheries are maximized again. b. to avoid fraudulent transport ships that do not land their cargo at the port. c. with this policy, it is hoped that the arrangement of the sea will be even better, so that it can reduce the number of fish exports that are not recorded by the government d. overall, the transshipment ban will not interfere with the export of fishery products. although there is a possibility of reducing marine catches, the potential for fish farming is greater. e. there are foreign ships that do transshipment, such as china, thailand, and the philippines. f. the policy regarding the prohibition of transshipment is also considered to be in line with the kkp policy to agree on an initiative from the ministry of trade in achieving the target of increasing exports of marine products. in addition, related to the handling of illegal fishing, the ministry of maritime affairs and fisheries issued six main policies13. first, by opening all fishing boat data on the internet 11 putri, ‘kebijakan pemerintah indonesia dalam menangani illegal fishing di indonesia’. 12 almuzzamil, ‘kebijakan pemerintah indonesia dalam menanggulangi illegal fishing pada tahun 2014-2015’. 13 putri, ‘kebijakan pemerintah indonesia dalam menangani illegal fishing di indonesia’. ship sinking policy … faradiba putri rahmadani and agus triono 60 so that it can be accessed by everyone, it is related to whether the ship has an official permit or not. second, the activities of loading and unloading in the middle of the sea (transshipment) are prohibited and strictly monitored. third, the activities of handling illegal fishing are more directed to prevention efforts and policies that create a deterrent effect for perpetrators. by being caught and burned in cooperation with the security forces at sea. fourth, fishing vessels that do not install a vessel monitoring system (vms) vessel movement monitoring device within a period of 1 x 24 hours will be subject to immediate action. fifth, kkp also made efforts to sink ships in accordance with law no. 45 of article 69. sixth, all of this refers to the fao code of conduct for responsible and sustainable fisheries. in addition, the policy taken by the government is to sink ships. this policy is an instruction given directly by the president and then forwarded by the kkp minister by ordering task force 115 to take firm action. the instructions given are followed by strict control. this tight control has the aim of preventing things that deviate from the instructions in the operationalization process. the policy in the context of preserving the waters and fisheries areas is the stipulation of regulation of the minister of maritime affairs and fisheries nkp no. 1 of 2015 namely eradicating the capture of three fishery species that are considered important, namely lobster (panulirus spp), crab (scyla, spp), and rajungan (portunus palegicus, spp)14. in the ministerial regulation, there is an article that regulates the restrictions on catching lobster, crab, and crab for consumption and trading. where everyone is prohibited from catching the 3 species when in a state of laying eggs with the minimum size that has been set. data up to july 2017, the failure to smuggle crab and lobster resources is considered to be able to save the state losses of idr 509.68 billion15. with this policy, smugglers from various countries have a deterrent effect. through several related agencies, it is hoped that they can play an active role in the interests of territorial waters and fisheries management. relevant agencies are expected to share responsibility and authority in the management of water areas and fisheries. fishery management institutions based on wppnri are aimed at increasing efficiency, optimizing and coordinating the implementation of fishery management in wppnri. 2. ship sinking in the context of eradicating illegal fishing the potential in indonesia's vast territorial waters is an economic capital that can be utilized to support national development16. the greatest potential in indonesian waters is fisheries. fisheries have an important role in the development of the national economy, especially in improving the standard of living for small fishermen. among various problems related to marine affairs, the practice of illegal fishing by foreign vessels is one of the practices that is most detrimental to many countries. the forms of illegal fishing practices that occur in indonesia include fishing without a permit, catching fish using fake licenses, catching fish using prohibited equipment, and catching prohibited types of fish. archipelago countries that have the potential for large fishery resources are an attraction for foreign fishing vessels to fish illegally. one of the factors that cause illegal fishing is the increasing world fish demand, but on the other hand the world fish supply has decreased, 14 ardhani, ‘arah kebijakan pemerintah mengenai illegal unreported unregulated (iuu) fishing di indonesia’. 15 ardhani. 16 rahman, ‘penenggelaman kapal sebagai usaha memberantas praktik illegal fishing’. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 61 and there is an excess demand. as a result of the technological sophistication of other countries that have experienced a fish crisis at sea, they have expanded their fishing activities to other countries17. indonesia is one of the destination countries for the expansion, because it is considered to still have a lot of fish in its waters. based on data from the ministry of maritime affairs and fisheries, there are 14 fishing ground zones in the world, currently, there are still 2 (two) zones that still have potential, one of which is indonesian waters 18. because there is still potential in indonesian waters, it triggers foreign fishermen to carry out illegal fishing in indonesian waters. as a result of illegal fishing, indonesia has suffered enormous losses. the fish trade in indonesia has decreased when compared to several other asean countries. in fact, indonesia is one of the largest fish producers in the world. to protect indonesia's wealth from rogue foreign fishermen, the government enforces the sinking of foreign vessels that illegally catch fish in indonesian waters in accordance with the rules contained in law number 45 of 2009 concerning fisheries19. the imposition of sanctions by sinking ships is one of the country's efforts to eradicate illegal fishing activities. the sinking of ships in indonesia is nothing new. the sinking of this ship already existed during the sby administration20. the decision to sink the ship is considered useful for fighting for state sovereignty. the ministry of maritime affairs and fisheries in fighting for sovereignty sets a vision of sovereignty, which is to build sovereignty that is able to support economic independence in the management of marine and fishery resources21. the vision is then carried out into a mission in the form of a policy to build sovereignty that is able to support economic independence in the management of marine and fishery resources. to be able to realize this mission, several strategies have been formulated, one of which is to eradicate illegal fishing. in relation to illegal fishing practices that occur in territorial waters, the involvement of foreign parties in fishing theft can be classified into two, namely semi-legal theft which is the theft of fish carried out by foreign vessels using a legal fishing permit owned by local entrepreneurs, with local-flagged vessels or even illegal fishing. other country's flag. this practice can be categorized as illegal fishing because it catches fish in waters that are not their right and sends the catch without going through the process of landing fish in legal areas. this practice is usually known as the practice of “borrowing flags” or flag of convenience (foc). second, pure illegal fishing theft is an arrest made by foreign fishermen using their own flag in the territorial waters of another country22. in fact, illegal fishing is not only carried out by foreign fishermen but also by local fishermen and entrepreneurs. 17 efritadewi and jefrizal, ‘penenggelaman kapal illegal fishing di wilayah indonesia dalam perspektif hukum internasional’. 18 efritadewi and jefrizal. 19 nurdin, ikaningtyas, and kurniaty, ‘the implementation of vessel-sinking policy as an effort to protect indonesian fishery resources and territorial waters’. 20 thontowi, ‘pembakaran dan penenggelaman kapal nelayan asing dalam perspektif hukum laut nasional dan internasional’. 21 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. 22 munawaroh, ‘penerapan sanksi penenggelaman kapal asing pelaku illegal fishing oleh pemerintah indonesia (perspektif hukum internasional)’. ship sinking policy … faradiba putri rahmadani and agus triono 62 the fisheries law stipulates that everyone who conducts and markets fish in the fisheries management area of the republic of indonesia (wpri) and in zeei is required to have a fishery business license (siup), a fishing permit (sipi), and a fish transporting vessel permit. (sikpi). it turned out that many foreign ships did not meet these requirements, in this case most of the ships did not have the complete documents. in fact, many also have letters that turn out to be fake. therefore, the fisheries law regulates the prohibition of forgery of letters by using fake siup, sipi, and sikpi23. every fishing vessel that carries out fishing activities is required to have a sailing approval letter issued by the harbormaster at the fishing port and a fishery vessel operating certificate from the fishery supervisor issued by the fishery supervisor after the administrative requirements and technical feasibility have been fulfilled. the perpetrators of illegal fishing will be examined and then tried in court and then sentenced if proven guilty. perpetrators who are proven guilty will be subject to administrative sanctions, imprisonment, or pay fines. in addition, in law no. 45 of 2009 concerning fisheries is strictly regulated regarding the imposition of sanctions in the form of burning or sinking foreign vessels that carry out illegal fishing activities in indonesian waters. it is contained in article 69 paragraph (4) which states that in carrying out the function as fishery investigators and or supervisors, fishery investigators and or supervisors may take special actions in the form of burning and or sinking ships with foreign flags based on sufficient preliminary evidence. examined then tried in court and then sentenced if proven guilty. perpetrators who are proven guilty will be subject to administrative sanctions, imprisonment, or pay fines. in addition, in law no. 45 of 2009 concerning fisheries is strictly regulated regarding the imposition of sanctions in the form of burning or sinking foreign vessels that carry out illegal fishing activities in indonesian waters. article 69 paragraph (4) states that in carrying out the function as a fishery investigator and/or supervisor, a fishery investigator and/or supervisor may take special actions in the form of burning and or sinking a ship with a foreign flag based on sufficient preliminary evidence. the implementation of the ship sinking policy by the kkp is marked by several phenomena of activity, namely first, the certainty of laws and regulations, presidential decrees, and the provisions of law enforcement agencies that legitimize the implementation of the ship sinking policy24. a number of ships that have been sunk have legal grounds such as presidential instructions and court decisions. the sinking of ships based on presidential instructions can be seen in the case of the sinking of 16 ships that were caught and then sunk without going through a court process. this is as stated by the minister of kkp, susi pudjiastuti, as follows: "yesterday i received an order from the president, now the process of sinking the ship is final, we will not do it again, so it doesn't cost money, time and others"25. all acts of sinking vessels carrying out illegal fishing are carried out based on article 69 of law no. 45 of 2009 concerning fisheries, amendments to law no. 31 of 2004 concerning fisheries, namely in carrying out the functions referred to in paragraph 1, fishery investigators and/or supervisors can take special actions in the form of burning and /or sinking of the ship with sufficient evidence. 23 munawaroh. 24 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. 25 nasirin and hermawan. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 63 second, implementing instructional patterns and coordinating the sinking of illegal fishing boats. this policy of sinking the ship is carried out with an instructional pattern from the president to the ministry of marine affairs and fisheries. the implementation of the ship sinking policy also coordinates with other agencies, such as the ministry of politics, law and security, the ministry of foreign affairs, embassies of other countries in indonesia, the navy, and others. third, the implementation of the ship sinking policy is carried out with high commitment. so that the implementation of the policy is consistent, firm, and sustainable. the existence of a strong commitment can encourage the implementation of policies in real terms and produce clear results. although the policy of sinking ships received threats from inside or outside the country, these actions were still implemented. the enforcement of the law of the sea, as reported by minister susi, that in 2016 78 vessels were arrested and about 236 fishing boats were sunk. it is planned that in 2017, about 92 ships will be burned. about 51 ships have been terminated, and final and there are about 41 are waiting for the final. in carrying out the burning and sinking of illegal fishing vessels, it was carried out after a transparent and accountable process of investigation, investigation and examination was carried out in courts in the field of fisheries26. several law enforcement institutions involved were the navy, water police, police, marine security agency (bakamula), psdkp, kkp. when viewed from the point of view of law enforcement politics, the sinking of foreign-flagged ships is a manifestation of firmness and willingness to fight for national interests in order to create public welfare. since the start of the policy of sinking vessels carrying out illegal fishing in the era of minister of marine affairs and fisheries susi pudjiastuti in 2015 to 2016 it has had a positive impact on the indonesian economy, especially in the marine and fisheries sector. the national fisheries sector shows positive results. in 2015, the growth of gross domestic product (gdp) in the fisheries sector increased from 7.35 percent in 2014, to 8.37 percent. fishery production also increased from 20.40 million tons to 23.99 million tons. this policy of sinking ships raises pros and cons27. for some law enforcement officers they do not agree with the policy of sinking ships. former deputy chief of police, commissioner general badroedin haiti, and coordinating minister for political, legal and security affairs tedjo edy parjianto agreed that the act of sinking ships cannot be done arbitrarily28. the process of imposing sanctions on the sinking of ships at sea must comply with legal procedures applicable at sea according to international legal agreements. there shall be an advance warning procedure by giving fire to the water on the starboard side and the ship, in accordance with the ship's pursuit arrangements. in chapter iii of unclos, the fight hot pursuit, the instant pursuit of a foreign ship can be carried out if the competent authorities and the coastal state have strong enough reasons to pursue a ship that violates the territorial waters of a country. 26 thontowi, ‘pembakaran dan penenggelaman kapal nelayan asing dalam perspektif hukum laut nasional dan internasional’. 27 raharjo et al., ‘the sinking ship policy to the perpetrator of illegal, unregulated and unreported fishing in criminal law perspective’. 28 thontowi, ‘pembakaran dan penenggelaman kapal nelayan asing dalam perspektif hukum laut nasional dan internasional’. ship sinking policy … faradiba putri rahmadani and agus triono 64 this disapproval was once raised by the navy staff, who said that the sinking and burning of foreign fishing vessels was not economically profitable. because the bullets used by the indonesian navy to shoot and burn the ships were detrimental. moreover, if the policy is still sectoral in nature, the expected results will not be optimal. the act of sinking ships by the kkp in the context of eradicating illegal fishing is the implementation of a top-down model policy. the keywords of this implementation model are command, change, control and compliance29. this implementation model occurs in the policy of sinking ships, instructions are given directly from the president and then forwarded by the ministry of marine affairs and fisheries by ordering task force 115 to take firm action. the instructions given are followed by strict control. this tight control has the aim of preventing things that deviate from the instructions in the operationalization process. the model for implementing the ship sinking policy by the ctf is in line with the views of ripley and franklin. they state in their thesis that the successful implementation of a policy is determined by three aspects: the level of bureaucratic compliance with the bureaucracy, smooth routine activities, and policy alignment and desired impact. these three things describe the implementation of a top-down model of public policy which is determined by the power and coercion factor from the center with a clear mandate from the laws and regulations30. in the era of president joko widodo, the minister of maritime affairs and fisheries, susi pudjiastuti, the practice of burning and sinking fishing boats with foreign flags tended to increase31. some parties admit that these actions have proven effective and become shock therapy. fishing vessels with foreign flags have decreased in number entering the territorial waters of indonesia. it is suspected that there are perceptions and concerns from foreign and domestic fishermen. then each state government whose fishing boats became victims of burning and sinking gave various responses. neighboring countries that often do illegal fishing are vietnam 96 ships, the philippines 59 ships, malaysia 38 ships, thailand, taiwan, china, and south korea. the sinking of ships carried out by the ministry of maritime affairs and fisheries (kkp) without going through a trial is the authority of the state based on article 69 paragraph (4) of law no. paragraph (1) fishery investigators and/or supervisors may take special actions in the form of burning or sinking fishing vessels with foreign flags based on sufficient preliminary evidence”32. the sinking of the ship is a strong warning for illegal fishing actors as well as indonesia's commitment to monitoring and enforcing the law in the territorial waters. kkp is very serious in reorganizing fisheries management with the aim that the sustainability of indonesian waters can be more guaranteed and in the end can improve the welfare of fishermen. 29 nasirin and hermawan, ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. 30 nasirin and hermawan. 31 thontowi, ‘pembakaran dan penenggelaman kapal nelayan asing dalam perspektif hukum laut nasional dan internasional’. 32 tombokan, ‘prosedur penegakan hukum terhadap kejahatan illegal fishing di perairan indonesia berdasarkan undang-undang nomor 45 tahun 2009 tentang perikanan’. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 65 the firm action of sinking the ship is predicted to be effective and create a deterrent effect, because the ship is the main tool for the perpetrators of theft. when the ship and its equipment are sunk, the thief will think again to repeat the theft of fish in indonesian waters. the act of sinking this ship in international diplomacy is also considered effective. this action is considered as a concrete and decisive action that is far more important and effective than other actions. c. conclusion from the discussion above, it can be concluded that the act of illegal fishing is an act of catching fish illegally or illegally. regulations regarding illegal fishing have been regulated in national and international regulations. the indonesian government itself has made various policies, including by establishing a task force for the eradication of illegal fishing (satgas 115) through presidential regulation no. 115 of 2015. task force 115 has the task of carrying out law enforcement operations in order to eradicate illegal fishing. other policies in the form of presidential regulation no. 16 of 2017 concerning the indonesian maritime policy and the transshipment prohibition policy. in addition, related to the handling of illegal fishing, the kkp also issued a policy in the form of burning and sinking ships based on article 69 paragraph (4) of law no. 45 of 2009 amendments to law no. 31 of 2004 concerning fisheries. despite the pros and cons, the sinking of this ship can have a deterrent effect for illegal fishing actors and is more effective in overcoming fish theft in indonesian waters. references almuzzamil, t muhammad. ‘kebijakan pemerintah indonesia dalam menanggulangi illegal fishing pada tahun 2014-2015’ 4, no. 2 (2017): 14. ardhani, hanuring ayu. ‘arah kebijakan pemerintah mengenai illegal unreported unregulated (iuu) fishing di indonesia’. humani (hukum dan masyarakat madani) 9, no. 2 (23 november 2019): 183–94. https://doi.org/10.26623/humani.v9i2.1604. banjarani, desia rakhma. ‘illegal fishing dalam kajian hukum nasional dan hukum internasional: kaitannya dengan kejahatan transnasional’, 2020. borit, melania, and petter olsen. ‘evaluation framework for regulatory requirements related to data recording and traceability designed to prevent illegal, unreported and unregulated fishing’. marine policy 36, no. 1 (1 january 2012): 96–102. https://doi.org/10.1016/j.marpol.2011.03.012. efritadewi, ayu, and wan jefrizal. ‘penenggelaman kapal illegal fishing di wilayah indonesia dalam perspektif hukum internasional’. jurnal selat 4, no. 2 (24 august 2017): 260–72. hikmah, mutiara. ‘illegal fishing in indonesia from the national and the international law perspectives’. indonesian journal of international law 11 (2014 2013): 60. munawaroh, siti. ‘penerapan sanksi penenggelaman kapal asing pelaku illegal fishing oleh pemerintah indonesia (perspektif hukum internasional)’. mimbar yustitia vol. 3 no.1 juni 2019 3, no. 1 (22 august 2019): 27–43. nasirin, chairun, and dedy hermawan. ‘kontroversi implementasi kebijakan penenggelaman kapal dalam rangka pemberantasan illegal fishing di indonesia’. spirit publik 12, no. 1 (april 2017): 9–24. ship sinking policy … faradiba putri rahmadani and agus triono 66 nurdin, ikaningtyas, and rika kurniaty. ‘the implementation of vessel-sinking policy as an effort to protect indonesian fishery resources and territorial waters’. iop conference series: earth and environmental science 137 (april 2018): 012038. https://doi.org/10.1088/17551315/137/1/012038. putri, dwiyanti. ‘kebijakan pemerintah indonesia dalam menangani illegal fishing di indonesia’. gema keadilan 4, no. 1 (1 october 2017): 157–69. https://doi.org/10.14710/gk.4.1.157-169. raharjo, agus, tedi sudrajat, rahadi wasi bintoro, and yusuf saefudin. ‘the sinking ship policy to the perpetrator of illegal, unregulated and unreported fishing in criminal law perspective’. e3s web of conferences 47 (2018): 06002. https://doi.org/10.1051/e3sconf/20184706002. rahman, zaqiu. ‘penenggelaman kapal sebagai usaha memberantas praktik illegal fishing’, n.d., 7. susanto, j., & masyhar, a.susanto, j., & masyhar, a. ‘law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis | journal of law and legal reform’, 2019. https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35590. thontowi, jawahir. ‘pembakaran dan penenggelaman kapal nelayan asing dalam perspektif hukum laut nasional dan internasional’. pandecta research law journal 12, no. 2 (2017): 152–64. https://doi.org/10.15294/pandecta.v12i2.11335.tombokan, rico coco. ‘prosedur penegakan hukum terhadap kejahatan illegal fishing di perairan indonesia berdasarkan undang-undang nomor 45 tahun 2009 tentang perikanan’. lex crimen 10, no. 4 (7 april 2021). https://ejournal.unsrat.ac.id/index.php/lexcrimen/article/view/33405. 59 refugee protection in multi-level governance regimes: a case for kenya and indonesia vincent g. yatani university of debrecen, hungary, e-mail: godanalaw@gmail.com submitted: january 16, 2023; reviewed: april 17, 2023; accepted: april 18, 2023. article info abstract keywords: functional assignments, multi-level governance, refugee protection. doi: 10.25041/lajil.v5i1.2868 in indonesia, the presidential regulation no. 125 of 2016 concerning the management of asylum seekers, signed by president joko widodo on the last day of 2016, formalizes the role of sub-national units in refugee management, including the provision of appropriate, noncustodial accommodation. while in kenya, the recently enacted refugee act of 2021 alludes to the engagement of the county governments in refugee protection. within the context of the legal framework of these two countries, this article analyses the place of refugees in a multilayered governance system through a comparative appraisal of local government structures in the selected states. the article compares forms of decentralization adopted in these two refugee-hosting countries with the primary aim of establishing local government formation responsive to asylum seekers' plight. the research finds a novelty that involving local governments in refugee protection is a crucial step toward the effective and sustainable management of displaced populations. however, for it to be effective, it must be supported by adequate resources, clear guidelines, and a strong institutional capacity. a. introduction in its very form, multi-level governance structures call for responsibility sharing between different tiers of government. in most jurisdictions, immigration controls, where refugee protection conventionally falls, is the domain of national or federal government function. while local communities play a critical role in providing refuge for displaced populations, policies and discourses about refugees and asylum seekers remain largely a preserve of central governments, leaving little room for local government involvement in refugee protection measures. in most instances, local governments are directly involved in managing volume 5 number 1, march 2023: pp. 59-72. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil refugee protection in … vincent g. yatani 60 crises. their role during displacement emergencies is limited to carrying out tasks delegated to them by central governments rather than planning and decision-making processes. 1 however, notwithstanding their peripheral legislative and policy functions, local governments remain important actors in refugee affairs, not least because of their direct physical presence as hosts to displaced populations. in many refugee-receiving countries, local administrations are often the first-line asylum receivers responding to humanitarian emergencies. furthermore, beyond reception, long-term and successful inclusion necessitates the integration of refugee-related issues into a wide range of local government roles. inevitably, the range of specified services offered by these geographically delineated areas is at the core of addressing the very basic needs of such a vulnerable group. different sovereign jurisdictions have local government formations with varying legal foundations that determine their functional scope. this is to say, the extent to which a local authority can undertake a given task depends on whether the task falls within the setting of functions allocated to it by the legal regime constituting its very formation. in this respect, while acknowledging the vital role of local authorities in refugee affairs and their varying legal formations in different jurisdictions, this paper attempts to provide a comparative assessment of the kenyan and indonesian multi-level governance regimes with specific reference to refugee management. using a comparative method, the paper evaluates local government designs in indonesia and kenya, specifically focusing on their role in refugee protection. this comparison is based largely on secondary sources such as journals, textbooks, and government reports, which may have impacted refugee protection within the framework of multi-level governance structures embraced in the two countries. relevant statutes and cases are critically examined, drawing on various points of view presented in the existing literature to test the efficacy of different forms of multi-level governance in refugee protection. the choice of the two countries is informed by the fact that both host a significant number of refugees in their territories. secondly, while kenya is a signatory to both the 1951 convention relating to the status of refugees and its 1967 protocol, indonesia is not, but unlike its close southeast asia (sea) neighbors, malaysia and thailand, indonesia has a progressive national legal regime including the constitutional right to asylum. 2 third, the selected countries practice some form of decentralized governance under different legal and continental jurisdictions. as such, this selection is considered significant in demonstrating the diversity of the spectrum in local governments' responses to the imposition of obligations and care for refugees in their respective governance frameworks. comparing countries with different legal commitments towards the 1951 convention and different national/regional dynamics of refugee protection is significant because it allows for a better understanding of the role of local governments in refugee protection within diverse contexts. despite the wealth of research on refugee protection and multi-level governance, there remain gaps in the literature regarding the specific challenges and opportunities for refugee protection in the context of multi-level governance in kenya and indonesia. this article aims to address these gaps by analyzing the legal and policy frameworks for refugee protection in these two countries and assessing the effectiveness of these regimes in ensuring the protection of refugees. in the first instance, the article offers a conceptual analysis of the functional assignment of roles and responsibilities to various levels of government and an overview of decentralized 1 diane archer, ‗migrant and refugee transit: the role of local authorities in humanitarian response‘ (international institute for environment and development 2016) <https://www.jstor.org/stable/resrep16680> accessed 19 february 2022. 2 nikolas feith tan, ‗the status of asylum seekers and refugees in indonesia‘ (2016) 28 international journal of refugee law 365. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 61 governance systems as practiced in kenya and indonesia. subsequently, the study compares how the local government structures in the selected countries have been tailored to respond to obligations to foster refugee protection by assessing their fundamental formations and functional allocations of various tiers of government structures. this comparison is aimed at appraising those formations to establish models suitable for promoting refugee protection at the local level. the novelty of this research is that analyzing the importance of recognizing the legal framework for functional assignment is not always well reflected on the ground due to various challenges, ranging from poor coordination to limited resource allocation to sub-national units. while these challenges arose in both indonesia and kenya, decentralization design choices varied in terms of their responsiveness to refugee protection issues. therefore, in the instant case, the concurrent nature of functional allocation under the indonesian model appears to be more responsive compared to the exclusively functional approach in kenya. b. discussion 1. functional assignment in multi-level governance gary marks first coined the phrase multi-level governance 3 in describing developments in european union‘s (eu) major structural reform in 1988. hooghe and marks 4 expanded on the multi-level governance model by examining the integration of the eu and its policymaking processes compared to the state-centric model. in their subsequent writings, marks and hooghe 5 two types of multi-level governance called type i & ii. the initial category pertains to all-purpose jurisdictions that contain subordinate jurisdictions, while the second category concentrates on particular policy issues and includes jurisdictions with a distinct purpose. as alluded to by bache & flinders, 6 multi-level governance is manifested in vertical and horizontal dimensions as well as jurisdictional and territorial boundaries, both within and beyond the normative nation-state frame. vertical dimensions echo the state-centric dispersion of roles to subnational or local levels of administration. in contrast, horizontal dimensions entail the distribution of functions across the traditional arms of government and interrelations between subnational levels. this describes governing arrangements that apply to an entire system, characterized by a small number of clearly defined, non-overlapping jurisdictions at limited territorial levels. each of these jurisdictions is responsible for a distinct set of functions. 7 therefore, literature on multi-level governance encompasses rationalization of authority in decision-making within various levels of state structures, whether horizontal or vertical. conversely, this article focuses on multi-level governance from the standpoint of vertical or areal decentralization of public services from the central government to other subsidiary units. political science and public administration define decentralization as a process or mechanism that distributes authority and divides duties between central government entities and locally established political and administrative bodies. the aim is to enhance the delivery of public services, promote economic and regional progress, and empower various groups' 3 marks, g. (1992). „structural policy in the european community‟, in a. sbragia (ed.), uk politics: institutions and policy making in the “new” european community (washington: the brookings institute).> accessed 10 october 2022. 4 ‗marks-structural-policy-in-the-european-community.pdf‘ <https://garymarks.web.unc.edu/wpcontent/uploads/sites/13018/2016/09/marks-structural-policy-in-the-european-community.pdf> accessed 10 october 2022. 5 marks, g. & hooghe, l. (2004). contrasting visions on multi-level governance, in bache, i. & finders, m. (eds.), multi-level governance. oxford/new york: oxford university press, pp. 15-30. 6 ian bache and matthew flinders (eds), multi-level governance (oxford university press 2004). 7 handbook on theories of governance | christopher ansell (editor), jacob torfing (editor) | download <https://book4you.org/book/21300848/ac19ae> accessed 9 october 2022. refugee protection in … vincent g. yatani 62 political and other rights. 8 notably, while definitions and approaches may differ depending on the context of the usage, the common thread that runs through the notion of multi-level governance is that authority, on a broad swathe of issues, is shared in a vertical relationship between levels of the public sector. while there exist different forms of multi-level governance with varied characteristics, the scope of this article is limited to functional assignment as a core element of such a design of governance with one or more subnational levels of government with a particular focus on the place of refugee protection in such a setup. gabriele ferrazzi and rainer rohdewohld 9 describe functional assignment as a sequence of activities through which levels of government receive roles and specific duties. to them, functional assignment is about transferring responsibilities and powers and the attendant resources to exercise them. 10 it is worth noting that the approach adopted by states in determining what function becomes the responsibility of what level and what resources should accompany the distribution of roles to different levels are as varied as the number of states practicing such a form of governance. moreover, the architecture or constructions regarding the autonomy and legal standing of the nature of the multi-level governance model in practice in a given country significantly influences functional assignments and other building blocks of such a system of governance. that is to say, depending on the legal instruments establishing them, the statuses and extent of role distribution across national and sub-national levels of government vary across the globe. these variations in legal formations result in distinct models of decentralization and functional categorizations. the degree of functional assignment to various government levels is dynamic. in addition to legal governance design, the decision on whether or not a given function should fall under the jurisdiction of the national or sub-national level must consider aspects such as appropriate policy process for the involvement of various levels of government, allocation of financial and human resources required across different levels of government, and necessary accountability measures to the public. when deciding to delegate or devolve a function from one level of government to another, effectiveness and efficiency are often crucial factors considered. 11 seemingly therefore, the basis of these functional allocations appears to be informed by grounds such as the competence level of the unit in performing a given task, the nature of the function to be undertaken; for instance, functions such as agricultural extension works are in their very nature suitable for devolved units while foreign relations duties suit the central government. ferrazzi and rohdewohld observed that functions could be assigned to levels of government with varying degrees of exclusivity in a multi-level government of a federal or unitary structure. 12 these variations are visible in obligatory, exclusive, residual, and concurrent functions typologies. exclusive functions, in principle are allocated to one level of government to the exclusion of the other level of government, while one or more levels of government share concurrent functions. on the other hand, obligatory functions, also known as mandatory or statutory functions in some jurisdictions, are normally characterized by the state‘s commitment to citizens, usually as part of the social compact in international 8 yusoff, mohammad agus; sarjoon, athamabawa; hassan, mat ali, ‗journal library of politics and law‘ 9 57<https://heinonline.org/hol/page?collection=journals&handle=hein.journals/jpola9&id=59&men_tab=srchresults> accessed 18 march 2022. 9 gabriele ferrazzi and rainer rohdewohld, ‗the context of functional assignment – decentralization, multilevel governance and the quest for impact‘, emerging practices in intergovernmental functional assignment (routledge 2017). 10 ibid. 11 erwan agus purwanto and agus pramusinto, ‗decentralization and functional assignment in indonesia: the case of health and education services‘ (2018) 39 policy studies 589. 12 gabriele ferrazzi and rainer rohdewohld, emerging practices in intergovernmental functional assignment (taylor & francis 2017). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 63 conventions, national constitutions, or national laws. while residual functions generally refer to those not explicitly provided for in the function assigning instrument in operation. table 1. below is an illustration of the normative trend of general functional assignment in a multi-level governance structure fig. 1. illustration of functional assignment between levels of governments as conceived by ferrazzi and rohdewohld each of these formations has merits and demerits depending on the framework of operations and interests of the various actors in the decentralization process. for instance, it has been argued on the one hand, that concurrent functions can lead to tension and disputes between levels of government and inefficiencies when two or more levels proceed to undertake the same duties, especially in instances where there is no clarity on the modalities of executing a given task in such functional assignment. however, on the flip side, certain services would naturally demand the involvement of all levels for effective execution and, therefore, cannot be avoided by both levels completely. depending on the nature of the legal instrument assigning it, exclusive allocation of functions may foster rigidity that might completely bar the involvement of the other level of government even when the situation demands the intervention of both levels. the question that arises within the context of this study is; of these varied functional allocation formations in multi-level governance, which form is more responsive for refugee protection measures? in response to this question, the article examines the functional formations in practice within the selected case studies. it appraises the most reliable formation in implementing a national asylum framework. in laying the foundation for this assessment, it is important to consider, albeit briefly, the sort of layers of decentralized structures in the two countries. 2. decentralized systems of governance in kenya and indonesia the debate on decentralization revolves around the three traditional deconcentration, devolution, and delegation models. each of these three models is characterized by a distinctive institutional framework, financial accountability, and personnel allocation across various levels of government. 13 kenya and indonesia have embraced political devolution as a form of decentralization with considerable variations in their functional distributions. this section summarizes the forms of multi-level governance in kenya and indonesia to provide a basis for the functional allocation of roles and responsibilities among various levels in the next part. 13 purwanto and pramusinto (n 13). levels of government functional assignment (normative trend) obligatory function exclusive function concurrent function residual function central government largely a preserve of central government assigned to the exclusion of the other level both levels perform the same role varies from one jurisdicti on to the other local government plays no significant role assigned to the exclusion of the other level refugee protection in … vincent g. yatani 64 a. the indonesian model visibly, indonesia has been restructuring its national-subnational relations by decentralizing public service to the local units since 1999. article 18 of the 1945 constitutional act establishes and maintains local government by adopting a local government charter. 14 this article provides the fundamental tenet of the regional rights in the local government system to preside over their local affairs. the second constitutional amendment law, passed in 2000, incorporated parts of the decentralization reforms, such as democratic elections for mayors and governors, into the constitution to ensure long-term system stability and provide political guarantees against arbitrary overthrow. 15 with the passage of law no. 22/1999 on regional government and subsequent revisions by law no. 32/2004 and law no. 23/2014, local government has been enshrined as a fundamental aspect of local self-governance. this has reduced the central government's role to primarily administer functions related to defense and security, external affairs, fiscal and monetary matters, religion, and the judiciary. 16 however, at any time, the national government can revise these assignments relating to inter-governmental relations as it deems fit. 17 although the law has undergone several changes as part of the government's transition from the old order to the new, the three fundamental principles of decentralization, deconcentration, and task assistance have continued to be reinforced in the governance structures of the republic of indonesia. in practice, though, the deconcentration principle appears more dominant than others, especially at the lowest levels of government structures. the devolved structure of indonesia is better understood in light of the overall goals of national political integration and political stability. that is to say. it is intended to have a conflict reduction and ethnic cohesion effect on indonesia‘s multi-ethnic population. as observed by erwan agus purwanto and agus pramusinto, 18 the execution of decentralization has resulted in both favorable and unfavorable effects on the delivery of public services in the country. these elaborate structures have their roles and responsibilities set out in the constituting instruments as well as local legislations and presidential regulations issued occasionally. in particular interest within this study's scope is the presidential regulation no. 125 of 2016 concerning the treatment of refugees signed by president joko widodo in 2016. the extent to which these governance structures have been enabled to accommodate the rights and interests of the diverse and vulnerable population, such as refugees, is the main focus of this article. the evaluation is conducted within the framework of functional distributions within various levels of government in line with their fundamental constitutive regimes and legal framework that is in practice in indonesia. the article also considers functional interactions between the various layers of government to interrogate whether such relations between different levels and actors is reflective of functional imperatives arising from legal instruments or are inspired by the actors‘ attempts to promote certain interests in respect of a level of government. there is also the consideration of how the various levels of government act in instances of crises and emergencies that are likely to compel the participation of all units in a given situation, whether for temporary interventions or otherwise and the impact such intervention will have on vulnerable population such as refugees is of importance too. 14 dr t krishnamohan, ‗the local government system in indonesia and sri lanka: a comparative overview‘ (2016) 03 <https://papers.ssrn.com/abstract=2910222> accessed 19 march 2022. 15 ibid. 16 purwanto and pramusinto (n 13). 17 ferrazzi and rohdewohld (n 11). 18 purwanto and pramusinto (n 13). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 65 b. the kenyan model after gaining independence from british rule on 12th december 1963, kenya adopted a federal constitution called majimbo 19 . this gave regions significant autonomy in the management of public service. however, the federal system was quickly dissolved into a centralized form of governance shortly after independence. this status changed in 2010 when a new constitutional order with two levels of government, national and county government, was established. 20 kenya's devolution aims to recognize communities' right to govern their own affairs, pursue their development objectives, and safeguard and advance the interests and rights of minorities and underprivileged communities. kenya‘s supreme law divides the country into forty-seven (47) counties with clearly defined geographical boundaries and role allocations. notably, neither the county nor the national government holds superiority over the other. still, both have a clear mandate to provide a range of functional assignments as outlined under the fourth schedule of the constitution: “article 6 (2) of the constitution of kenya 2010 provides that the governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations based on consultation and cooperation.” the autonomy of the local government is to the extent that, in the realm of an exclusive county function, the generation of legislation governing such functions becomes a preserve of the county government. as such, where conflict of laws arises, such county legal framework precedes the national law as detailed under article 191 of the constitution. “(2) national legislation prevails over county legislation if— a) the national legislation applies uniformly throughout kenya and any of the conditions specified in clause (3) is satisfied; or b) the national legislation is aimed at preventing unreasonable action by a county that— i. is prejudicial to the economic, health, or security interests of kenya or another county; or ii. impedes the implementation of national economic policy. and 191 (4) provides that county legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) applies.” as a result, counties have the authority to "regulate all matters relevant to the local community under their responsibility within limits established by the laws." apart from the judicial arm that has remained with its national outlook, the forty-seven county governments exercise their autonomy in having their own legislative and executive authorities to further this distinction. however, numerous mechanisms exist to enforce collaboration and joint decision-making across levels and jurisdictions to ensure concurrent function and unity of purpose. the constitution mandates the two levels of government to control their budgets and accounts and further empowers them to raise their revenue. the county governments have also been given a constitutional mandate to make and enforce local legislation. besides the decentralized county structures, the central government has its presence at the local level through national coordination units representatives in this setting are responsible to the central government. regarding functional allocations, entities entrusted with refugee management fall within the realm of the national government. so, the question that the article interrogates is whether the national government can undertake refugee protection roles to 19 majimbo is a swahili term for political devolution of power to regions within a state territory 20 the constitution of kenya, 2010. at article 6(1) the constitution provides that, the territory of kenya is divided into the counties specified in the first schedule https://en.wikipedia.org/wiki/swahili_language https://en.wikipedia.org/wiki/devolution refugee protection in … vincent g. yatani 66 exclude county involvement, considering that county governments have been mandated to take charge of critical sectors such as health, community land ownership, and management of county affairs generally. these essential services are certainly needed by the refugees too. therefore, if counties have no role in managing and protecting refugees, who or which entity will provide them with such services? the next part of the article interrogates how the selected countries' decentralized governance structures have attempted to address such needs. 3. a comparative analysis of kenya and indonesian governance models in refugee protection the distribution of functional responsibilities across different levels of government in indonesia and kenya is evaluated in assessing the impact of multi-level governance in light of refugee protection in the two countries. as alluded to in the preceding part, the article focuses on the vertical dimension of the allocation of functions by examining the implications of local governance in its interactions with a higher level of government in a centre–periphery relations. a. the practice in indonesia in indonesia, refugee management, an aspect of international migration, naturally falls within the realm of central government function. it should be noted from the onset that indonesia's geographical location makes it a transit country for refugees, primarily from asia to the australian continent. because indonesia is not a signatory to the 1951 convention relating to the status of refugees and its 1967 protocol, refugee management in indonesia appears to be based on the principle of human dignity that runs through her national ideology pancasila. this principle is expanded upon in the 1945 constitution, particularly articles 28a through 28j, as well as in law number 37, the year 1999 on international relations, law number 39, the year 1999 on human rights, and other rules and regulations in indonesia. these provisions have been strengthened by presidential regulation number 125 of the year 2016 on the treatment of refugees, which essentially fills a legal void in the country that has long affected asylum seekers and refugees. as it attempts to provide coordination and functional allocation for various levels of government, this regulation is a critical point of reference regarding the treatment of asylum seekers and refugees. in indonesia, applying the principle of decentralization has left the central government mainly with the role of creating norms, standards, procedures, and criteria. while article 2 of the regulation expressly states that refugees are handled following cooperation between the central government and the united nations (un) through the united nations high commissioner for refugees (unhcr) in indonesia and other international organizations, articles 24-26 of the same regulation delegate the role of non-custodial refugees to local governments. 21 these non-custodial practices entail measures authorities apply to migrants and asylum seekers on their territories where some form of control is deemed necessary. the city of makassar, for example, has been successful in placing a large number of refugees in shelters that meet international quality and safety standards. 22 besides the assigned functions of shelter provisions for the asylum seekers, regency/municipal governments are key actors in the burial of deceased asylum seekers. the bulk of the task regarding administrating refugees' affairs rests with the central government agencies. however, the presidential regulation no. 125 of 2016 concerning the treatment of refugees in indonesia sets out a coordination mechanism for national and local governments 21 refworld | indonesia: regulation of the president of the republic of indonesia no. 125 year 2016 concerning the handling of foreign refugees 2016. 22 antje missbach, yunizar adiputera and atin prabandari, ‗is makassar a ―sanctuary city‖? migration governance in indonesia after the ―local turn‖‘ (2018) 11 advances in southeast asian studies 199. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 67 in refugee protection efforts. 23 the regulation mandates the establishment of a national committee for the treatment of refugees, which serves as a coordination body between the national government, local governments, and other relevant stakeholders in the implementation of refugee protection policies and programs. the committee is responsible for monitoring and evaluating the implementation of refugee protection policies and programs at the national and local levels and for promoting greater cooperation and collaboration between different levels of government. from the preceding, the devolution of tasks concerning refugees where the national government is increasingly keen to involve local governments in managing asylum seekers to resolve coordination problems between various levels is noticeable. further, it is visible from the provisions of the regulation that the functional arrangement adopted in the indonesian setting appears to be that of shared responsibility between the levels of government. this is to say, besides the national government, various subnational units have been allocated certain refugee management roles and, therefore, concurrently perform the assigned functions with the national government. the venn diagram below illustrates the interaction between levels of government in refugee protection in the country. the illustration is limited to functional allocations as outlined in presidential regulation number 125 of the year 2016 on the handling of refugees, which indeed is the primary legislation with express provisions outlining role allocation for the various levels of government as far as refugee protection is concerned. the regulation covers refugee search and rescue, housing, security, supervision, and funding for related activities. 24 the four other elements manifestly demonstrate the indonesian refugee policy's localization, except for search and rescue operations, which national organizations oversee. local administrations are authorized and accountable for caring for refugees within their respective jurisdictions within this framework. the diagram reflects the normative trend of general functional assignment in a multi-level governance structure, focusing on the distribution of refugee management roles between the central government and various tiers of subnational units, generalized as ‗local governments.‘ fig 2. illustration of interaction between levels of government in refugee protection in indonesia 23 indonesia: regulation of the president of the republic of indonesia no. 125 year 2016 concerning the handling of foreign refugees [indonesia], 31 december 2016, available at: https://www.refworld.org/docid [accessed 7 march 2022] 24 ibid. local governments central government policy considerations search and rescue immigration detention facility issuance of special identity cards shelter provision burial of the victims provision of healthcare and religious facilities asylum protection refugee protection in … vincent g. yatani 68 from the above illustration, there is the express allocation of refugee protection functions to both levels of government. the central government is responsible for policy considerations, search and rescue, immigration detention facilities, and issuance of special identity cards. in contrast, the local government is charged with shelter provision, the burial of victims, healthcare provision, and religious facilities. while indonesia has a long history of dealing with refugee issues, there is no comprehensive legal instrument to address refugee-related matters, including claims made by foreign nationals seeking asylum to obtain recognition as refugees. however, the government of indonesia continues to address the refugee problem as a universal human rights issue. currently, the presidential regulation no. 125 of 2016 concerning the treatment of refugees provides a legal framework for all practices that continue to be implemented in principle. regarding coordination among levels of government, the presidential regulation provides some clarity beginning with the stages of discovery, shelter, security, and immigration supervision. despite some substantive issues gripped by a funding dilemma, particularly for regions that receive or accommodate asylum seekers and refugees, the regulation establishes a framework for coordination in handling refugees and asylum seekers at both the central and regional levels. b. the kenyan scenario kenya has a comprehensive refugee policy that outlines the rights and obligations of refugees and the government's and other stakeholders' responsibilities. though, unlike in indonesia, where the functional arrangement on refugee protection appears to be a shared responsibility between various levels of government, kenya‘s refugee protection system is generally a centralized function of the national authorities. regarding functional assignment, entities entrusted with refugee protection are responsible to the national government and have no relationship with the authorities in the county governments. therefore, within the normative trend of general functional allocation in a multi-level governance structure, kenya's refugee protection role can be considered both an obligatory and exclusive national government function. however, the refugee act of 2021 25 represents a significant shift in conceptualizing refugee protection. the act provides access to the labor market and livelihood opportunities. in terms of local government presence, it provides for the inclusion of a representative from the council of governors in the refugee advisory committee. 26 this is intended to enhance counties' participation in refugee protection, even though there is no clear framework for this participation. nonetheless, rather than relying solely on external assistance and the traditional asylum model, the act emphasizes the importance of self-reliance and local integration. by doing so, the act seeks to create a more sustainable and locally-driven approach to refugee protection that benefits refugees and the local community. moreover, kenya is a pilot country for the unhcr's comprehensive refugee response framework (crrf). 27 the crrf is a multi-stakeholder approach involving the participation of national and local authorities, civil society organizations, the private sector, and refugees. this follows the provision of the global compact for refugees, 28 which states in paragraph 106 that all stakeholders should "facilitate meaningful participation of refugees, including women, persons with disabilities, and youth" in refugee decision-making. kenya's devolved 25 the refugee act, 2021. section 28 (2) provides that the cabinet secretary may, by notice in the gazette and in consultation with the relevant county governments, designate specific counties to host refugees while sub-section (4) …refugees shall be enabled to contribute to the economic and social development of kenya by facilitating access to, and issuance of, the required documentation at both levels of government. 26 refugee advisory committee established under section 11 of the refugees act 27 randall hansen, ‗the comprehensive refugee response framework: a commentary‘ (2018) 31 journal of refugee studies 131. 28 bs chimni, ‗global compact on refugees: one step forward, two steps back‘ (2018) 30 international journal of refugee law 630. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 69 system, which the 2010 constitution established, also provides important avenues for crrf engagement and public participation. for instance, turkana and garissa counties have incorporated refugee concerns into their county integrated development plans (cidps). both regions created integrated socio-economic development plans focused on area-based refugee and host community development approaches. notably, there is a gap between the provisions of the act and the initiatives of the county and other stakeholders, owing to the exclusive nature of kenya's refugee protection function. the exclusive nature of the protection role, without a doubt, impedes the effective coordination and responsiveness of county government structures to the needs of refugees. county governments have no mandate to intervene in refugee protection under exclusive functional allocation, as in kenya. as such, even when a county government expresses its intention to allocate resources for refugee protection programs, such allocations can be easily challenged for lack of legal mandate. national government county government fig 3. illustration of kenya‟s functional allocation of refugee protection between the two levels of government as shown in the above diagram, the national government undertakes refugee protection roles in kenya to exclude the county government. the question that arises, therefore, considering that the county governments have mandates over critical sectors such as health, community land ownership, and management of county affairs generally, will the national government undertake refugee protection functions to the exclusion of the county government effectively? certainly, bearing in mind the critical sector role that the counties perform, the complete assignment of refugee protection tasks to just one level of government comes with profound challenges that will, in the process, deter the effective application of refugee protection measures. c. conclusion from the preceding, it can be argued that functional distribution to the various levels determines which mode of functional allocation is responsive to refugee protection. this study takes the view that concurrent or shared functions that are dispersed to subnational levels impact more positively on the protection of refugees. the case of functional assignment in the refugee sector for kenya and indonesia demonstrates that central governments continue to be the dominant actor in refugee protection and public service delivery in general. it is also worth noting that while local governments are generally assigned a wide range of functions, they are not accompanied by adequate budgetary allocations. the functional assignments delegated to local governments vary and are heavily influenced by the capacity of each region. no role in refugee protection obligatory and exclusive refugee protection function refugee protection in … vincent g. yatani 70 indonesia's continued decentralization and regional autonomy implementation have yielded positive and negative outcomes. 29 for indonesia, implementing the cited presidential regulation appears to increase an understanding and better coordination between the levels of government. in turn, this has enhanced cohesion in implementing refugee protection measures in the county. these positive assessments notwithstanding, major shortcomings have also become apparent during emergencies in attending to the plight of asylum seekers. some are attributable to local governments, while others may result from uncoordinated shared responsibility at different levels. the presidential regulation has not necessarily resulted in better outcomes for refugees. still, it has revealed some flaws in refugee protection, such as the limitations of care provided by local governments being tightly linked to national decision-making, a lack of resources for refugee programs, and the absence of political will to agree to take responsibility for asylum seekers in the country. on the other hand, kenya, despite being a signatory to all international and regional legal frameworks governing refugees and elaborate national legislation, the nature of functional allocation within its multi-level governance structures is not as responsive in refugee protection. this exclusive nature of the functional allocation of refugee protection role to the national government hampers the effective participation of the county governments in the implementation of protection programs largely due to a lack of structured coordination it is important to recognize that legal frameworks for functional assignment are not always faithfully reflected on the ground due to various challenges, ranging from poor coordination to limited resource allocations to sub-national units. while these challenges appear in both indonesia and kenyan settings, decentralization design options vary in their responsiveness to matters of refugee protection. in the instant case, therefore, the concurrent nature of functional allocation under the indonesia model appears to be more responsive than kenya‘s exclusive functional approach. references agus d, ‗functional assignment in indonesia : policy issues and recommendations‘ world bank <https://documents.worldbank.org/ accessed 14 october 2022 archer d, ‗migrant and refugee transit: the role of local authorities in humanitarian response‘ (international institute for environment and development 2016) <https://www.jstor.org/stable/resrep16680> accessed 19 february 2022 bache i and flinders m (eds), multi-level governance (oxford university press 2004) chimni b, ‗global compact on refugees: one step forward, two steps back (2018) 30 international journal of refugee law 630 ferrazzi g and rohdewohld r, ‗the context of functional assignment – decentralization, multi-level governance and the quest for impact,‘ emerging practices in intergovernmental functional assignment (routledge 2017) ——, emerging practices in intergovernmental functional assignment (taylor & francis 2017) handbook on theories of governance | christopher ansell (editor), jacob torfing (editor) | download <https://book4you.org/book/21300848/ac19ae> accessed 9 october 2022 hansen r, ‗the comprehensive refugee response framework: a commentary (2018) 31 journal of refugee studies 131 29 dwiyanto agus, ‗functional assignment in indonesia: policy issues and recommendations‘ world bank <https://documents.worldbank.org/en/publication/documents reports/documentdetail/functional-assignment-in-indonesiapolicy-issues-and-recommendations> accessed 14 october 2022. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 71 krishnamohan dt, ‗the local government system in indonesia and sri lanka: a comparative overview‘ (2016) 03 <https://papers.ssrn.com/abstract=2910222> accessed 19 march 2022 marks, g. & hooghe, l. (2004). contrasting visions on multi-level governance, in bache, i. & finders, m. (eds.), multi-level governance. oxford/new york: oxford university press, pp. 15-30 google search marks, g. (1992). ‗structural policy in the european community,‘ in a. sbragia (ed.), uk politics: institutions and policy making in the ―new‖ european community (washington: the brookings institute). > accessed 10 october 2022 ‗marks-structural-policy-in-the-european-community.pdf‘ <https://garymarks.web.unc.edu/wp-content/uploads/sites/13018/2016/09/marksstructural-policy-in-the-european-community.pdf> accessed 10 october 2022 missbach a, adiputera y and prabandari a, ‗is makassar a ―sanctuary city‖? migration governance in indonesia after the ―local turn‖‘ (2018) 11 advances in southeast asian studies 199 purwanto ea and pramusinto a, ‗decentralization and functional assignment in indonesia: the case of health and education services (2018) 39 policy studies 589 tan nf, ‗the status of asylum seekers and refugees in indonesia‘ (2016) 28 international journal of refugee law 365 yusoff, mohammad agus; sarjoon, athamabawa; hassan, mat ali, ‗journal library of politics and law‘ 9 57 <https://heinonline.org/hol/page?collection=journals&handle=hein.journals/jpola9& id=59&men_tab=srchresults> accessed 18 march 2022 refworld | indonesia: regulation of the president of the republic of indonesia no. 125 the year 2016 concerning the handling of foreign refugees 2016 the constitution of kenya, 2010 the refugee act, 2021 refugee protection in … vincent g. yatani 72 103 organization of islamic cooperation responses on the israel aggresion and the united states embassy relocation to jerusalem afifah ayumia1, putri andini2 , raden muhamad mahardika3 1untirta center of international law studies (ucils), indonesia, e-mail: 1111180152@untirta.ac.id 2untirta center of international law studies (ucils), indonesia, e-mail: 1111180272@untirta.ac.id 3untirta center of international law studies (ucils), indonesia, e-mail: 1111180157@untirta.ac.id submitted: mar 31, 2022; reviewed: oct 05, 2022; accepted: oct 07, 2022 article info abstract keywords: israel aggression, oic, palestine, us administration declaration, us embassy. doi: 10.25041/lajil.v4i2.2578 the aggression carried out by israel against the palestinian people and the declaration of jerusalem as the capital of israel with the relocation of the us embassy received the attention of the oic. as an organization committed to protecting muslims' human rights, the oic has the responsibility to take care of the human rights violations that occurred in palestine. the objectives of this paper are to find out the oic's role in maintaining muslim peace in the world, how the oic's response to israeli aggression against the palestinian people, and the relocation of the us embassy to jerusalem. the research method used in writing this journal is normative legal research, with historical approach to find out the beginning of the conflict between palestine and israel and an analytical approach to finding out the efforts made by the oic for israel's aggression against the palestinian people and the united states embassy relocation to jerusalem under the provisions of international law. a. introduction countries in this world has differences in ideology, politics, economy, society, culture, defense, security, education, and natural resources. based on these differences, states are required to interact with other countries to maintain their existence and fulfill t heir interests through international relations.1 the process that takes place in interacting with other countries doesn’t always run well. therefore, conflicts between nations cannot be avoided. one of which 1 tika tazkya nurdyawati, “muatan berita propaganda israel dan kesengsaraan palestina,” jurnal penelitian politik (lipi) 18, no. 1 (2021): 49, https://doi.org/https://doi.org/10.14203/ jpp.v18i1.902. volume 4 number 2, july-december 2022: pp. 103-114 department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil organization of islamic cooperation… afifah ayumia, putri andini, raden muhamad mahardika 104 is what happened between palestine and israel. the struggle for state territory caused the protracted conflict between palestine and israel.2 palestine is known as a holy area for the three heavenly religions, islam, christianity, and judaism.3 the palestinian territories, called al-ard al-muqaddasa, has the meaning of holy land, namely a peaceful life without any conflict between its people. it is located in the middle east region with an area of 27,000 square kilometers. geographically, the palestinian territory is very strategic, which is to connect three continents, including the asian continent, the african continent, and the european continent.4 the palestinian population is descended from the assyrians and philistines who have occupied the palestinian territories for a long time and until now have mixed with people of arab, roman, turkish, and greek descent. 5 historically, the palestinian territories and other areas of the middle east have been controlled by the ottoman turks for an extended period. 6 during world war i, turkey allied with germany; this made britain feel uneasy and decided to cooperate with the jews. at the same time, arabia, which the ottoman turks were controlling, wanted to secede. with this situation, britain took advantage of it by helping the arabs to separate from the ottoman turks and giving them territory based on an agreement called the 1916 sykes-picot agreement. this agreement is between britain, arabia, france, and russia, containing the division of territory if britain wins in world war i (british zone). the division of the region covering iraq, jaffa, jerusalem, and the eastern arab border to egypt will be jointly controlled by britain, france, and russia, while aleppo, damascus, mosul, and western syria will be under french control. according to the rules of the league of nations, the territory conquered by the victorious country of world war i, the region will be temporarily controlled by the victor.7 when world war i was in progress, chaim weizmann, a british jew, was respected for determining the formula for weapons used by the british. therefore, he received a reprisal from david lloyd george as british prime minister in the form of a national home for the jews in uganda, africa. still, weizmann refused and asked for palestinian territory. on this basis, the balfour declaration was formed on november 2, 1917, which stated that the british government approved granting a homeland for the jews in the palestinian territories. 8 the balfour declaration was based on the name of the british secretary general for foreign affairs, arthur james balfour. they sent the balfour declaration letter to lionel walter rothschild, an honorary head of the british jewish federation.9 after world war 1 ended and britain emerged as the victors, based on the league of nations recommendation, the right to manage palestine until palestine's independent process was handed over to britain. this situation is what underlies the conflict between palestine and israel, where arabs and jews both recognize the palestinian territories as their territory to run the government based on the 1916 sykes-picot agreement and the 1917 balfour declaration. over time, after the balfour declaration was declared, many jewish immigrants came and settled in the palestinian territories. the move of jewish to palestinian territories led to a series of protests from the palestinian arabs to the british government and the jews. the rejection 2 syarif bahaudin mudore, “peran diplomasi indonesia dalam konflik israel-palestina,” jurnal cmes 12, no. 2 (december 12, 2019): 170, https://doi.org/10.20961/cmes.12.2.37891. 3 firdaus firdaus et al., “yasser arafat dan konflik palestina-israel (tinjauan sejarah),” khazanah: jurnal sejarah dan kebudayaan islam 10, no. 1 (may 31, 2020): 1–12, https://doi.org/10.15548/khazanah.v10i1.265. 4 emilia palupi nurjannah and m fakhruddin, “deklarasi balfour : awal mula konflik israel palestina,” jurnal sejarah dan pendidikan sejarah 1, no. 1 (2019): 15–26. 5 syahrul adhim and yuliati yuliati, “konflik terbentuknya negara israel pada tahun 1948-1973,” asanka: journal of social science and education 2, no. 1 (march 31, 2021): 61–70, https://doi.org/10.21154/asanka.v2i1.2429. 6mudore, “peran diplomasi indonesia dalam konflik israel-palestina.” pp. 172. 7 adhim and yuliati, “konflik terbentuknya negara israel pada tahun 1948-1973.” pp.65 8 yusliana noor, sejarah timur tengah (asia barat daya) (yogyakarta: ombak, 2014), 327-328. 9 tika tazkya nurdyawati, “western interest dalam proses perkembangan negara israel (1917-1948) sebagai akar utama konflik israel-palestina,” ampera: a research journal on politics and islamic civilization 1, no. 1 (january 25, 2020): 24– 37, https://doi.org/10.19109/ampera.v1i1.5204. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 105 and rebellion between the palestinian arabs and the jews continued until after the end of world war ii; the british government officially handed over the palestinian territories to the united nations (un). under the purpose of the establishment of the un, namely for the sake of creating world peace, the un has made various efforts to resolve the conflict over territory between palestine and israel.10 the organisation of islamic cooperation (oic) were also formed to maintain the security and peace of muslims in the world. the oic's membership consists of 57 sovereign countries, where these countries have full ability to act as long as it doesn't violate the principles of international law, doesn't intervene in other countries, and don't conflict with the regulations contained in the oic's main instruments. the oic has conducted consultative relations and cooperation with the un and resolved conflicts involving member countries. the new oic 2025 program is based on the oic charter with 18 priority areas and 107 objectives. the priority areas include peace and security, palestine and al-quds, poverty alleviation, counterterrorism, investment and finance, science and technology, food security, culture, and interfaith harmony, moderation, climate change, women's empowerment, human rights, and good governance.11 the aggression carried out by israel against palestine continues to this day, caused many victims consisting of civilians, furthermore, as a result of these attacks, many public facilities were seriously damaged, such as schools, hospitals, and places of worship. this matter certainly has violated humanitarian principles and also violated the provisions of international humanitarian law. moreover, in 2017, the illegal recognition of the united states embassy for israel in jerusalem indirectly recognized jerusalem as the capital of israel and is a violation of international law. the writing of this journal was carried out to discover the oic's role in maintaining muslim peace in the world and how the oic's response to israeli aggression against the palestinian people and the relocation of the united states embassy to jerusalem. to answer these problems, research must be carried out. according to soerjono soekanto, research is a scientific activity based on analysis and construction carried out in a structured, methodological, and consistent manner to reach the truth and know what is being faced.12 the research method used in writing this journal is normative legal research or library law research, namely legal research conducted by reviewing secondary legal materials.13 the approach that will be used is a historical approach to find out the beginning of the conflict between palestine and israel and an analytical approach to finding out the efforts made by the oic for israel's aggression against the palestinian people and the united states embassy relocation to jerusalem under the provisions of international law. under the normative legal method, the source of data used is secondary data to find information, obtain a lawful basis, and define a term.14 secondary data consists of primary legal materials, secondary legal materials, and tertiary legal materials. primary legal materials are binding legal materials, such as international agreements and national legislation. secondary legal materials are legal materials that describe explanations of primary legal materials, such as books, journals, and articles. tertiary legal materials are legal materials that explain primary legal materials and secondary legal materials, such as the big indonesian language dictionary, legal dictionaries, and the internet. data collection in writing this journal is done utilizing 10 rezki satris, “peranan politik luar negeri indonesia terhadap palestina pasca pengakuan jerusalem sebagai ibu kota israel,” politea 2, no. 2 (october 15, 2019): 161, https://doi.org/10.21043/politea.v2i2.5884. 11 organisation of islamic cooperation, “history”, november 14, 2021. available online https://www.oicoci.org/page/?p_id=52&p_ref=26&lan=en. 12 soerjono soekanto, pengantar penelitian hukum (jakarta: ui press, 2012), 3. 13 soerjono soekanto and sri mamudji, penelitian hukum normatif: suatu tinjauan singkat (jakarta: raja grafindo persada, 2015), 13. 14 burhan ashshofa, metode penelitian hukum (jakarta: rineka cipta, 2013), 20. organization of islamic cooperation… afifah ayumia, putri andini, raden muhamad mahardika 106 library research which is then analyzed qualitatively to get knowledge and information about the problems.15 previous research regarding the relocation of the united states embassy to jerusalem has been carried out by teguh maulana rizky pohan in his undergraduate thesis entitled legal status of the jerusalem region due to the movement of the united states embassy from tell aviv to find out the factors that underlie the united states moving its embassy to jerusalem and find out the legal status of jerusalem as a result of the relocation, as well as t o find out how the international community responded to the relocation. the novelty of this research is about the responsibility of the oic as a subject of international law in maintaining world peace and security, especially in palestine after the aggression carried out by israel and also the relocation of the united states embassy to jerusalem. b. discussion 1. a brief history of the establishment of the oic for eight years, from 1940 to 1948, the jews occupied most of the palestinian territories by expelling, abandoning, and carrying out aggression against the palestinian arabs. the act culminated with the proclamation of israel on may 14, 1948.16 furthermore, from 1948 to 1968, israel continued to carry out aggression against the palestinian arabs. israel won the six-day war in 1967 by legally and politically controlling the al-aqsa mosque, bayt al-maqdis, and east jerusalem. in 1969 israel burned down the al-aqsa mosque, which caused outrage among muslims worldwide. as a result of the burning, an international organization based on a religious philosophy was formed called the oic.17 the oic was formed based on a decision at a historic conference on 12 rajab 1389 h or coincided on september 25, 1969 located in rabat, morocco which was the result of a high-level conference discussing the crime of burning the al-aqsa mosque in jerusalem. starting from the attack carried out by israel against palestine in the burning of the al -aqsa mosque located in the city of al-quds (jerusalem) which occurred on august 21, 1969. this incident made muslims around the world angry and condemned the incident as a desecration of the holy place for the muslim world. until the end, several countries with muslim populations initiated the formation of organizations and mobilized the power of the islamic world against israel's arbitrariness in carrying out the arson and violence that had been committed by israel, and finally the oic was formed. this conference was the beginning of the formation of the oic at the initiative of kings such as from saudi arabia, namely king faisal and from morocco, namely king hasan, and the preparatory committee namely iran, malaysia, nigeria, pakistan, somalia, saudi arabia, and morocco. on september 22-25, 1969, the first islamic summit was held. 2. the oic's role in muslim peace in the world from the background of the formation of the oic, there is a response that the oic is more concerned with the affairs in the arab region and the mi ddle east. this assumption can’t be completely denied, because: a. there are world affairs that are the center of international attention, one of which occurs in the arab region and the middle east b. middle east and palestinian affairs are more in the center of attention because there are disputes related to religion and muslims from all over the world. and half of the oic member countries come from the middle east. 15 sabian utsman, metodologi penelitian hukum progresif (yogyakarta: pustaka pelajar, 2014), 28. 16 nurjannah and fakhruddin, “deklarasi balfour : awal mula konflik israel palestina.” pp.24 17 wiwin yulianingsih and moch. firdaus sholihin, hukum organisasi internasional (yogyakarta: andi offset, 2014), 37. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 107 even so, other international issues often receive more attention from the oic. in political matters, the oic pays attention to the india-pakistan conflict, south africa, south philippines, afghanistan, and others. in the economic field, the “consolidated fund for the development of the islamic world program" has been collected. this is to assist the development programs of oic member countries. the fundraising resulted in an "action plan to strengthen economic cooperation among oic member countries”. in addition, in its efforts to develop in the socio-cultural field, the oic has established many additional institutions such as those dealing with issues of education, science and technology, law, culture, whose duties are almost the same as those of the un specialized agencies. among these additional institutions include: the international commission on islamic cultural heritage which deals with issues concerning the preservation of islamic cultural heritage in islamic countries; islamic jurisprudence academy which aims to study issues concerning the life of "ijtihad" derived from the islamic tradition; the international islamic law commission to contribute to the advancement of the principles of islamic law and its codification; and others. 3. israel aggression against palestinian people the ottomans have long dominated palestine, that is, since this region and the middle east generally came under its rule for no less than three centuries. in 1917 palestine changed hands from the ottoman turks to british imperialism as a result of the defeat of the ottoman turks. on november 2, 1917, the british made an offer, namely to divide the territory into 2, namely, east of the jordan river belonging to palestinian jews, and west of jordan river belonging to palestinian arabs. at that time, the place designated for palestinian arabs was called trans jordan, and its territory was much larger than the area for palestinian jews. the british gave the arabs 77% of the promised land to the jews, while the jews received 23%. although they were disappointed because they felt that their promise was broken by the british, the jews relented and still accepted the division. on july 24, 1922, the division of the territory was changed, becoming palestinian jews got 28,166 square kilometres and palestinian arabs got 92,300 square kilometres. however, it turns out that this division has not been accepted by the arabs, they still want all of palestine under arab rule, since the issuance of the balfour declaration, palestinian arabs have continued to attack and threaten the palestinian jews. meanwhile the jews who have got 23% of the palestinian territories, are trying hard to protect themselves. they formed an army known as the haganah and the (more militant) irgun. protecting and saving the jews from arab attacks especially from the fedeyen (arabpalestinian suicide squad) is their job. since 1920, the situation in palestine has been getting worse because of the impact of massive immigration carried out by jews throughout the world to palestine. this made the arabs even more angry. finally on may 14, 1948 davin ben-gurio, the first prime minister of israel declared israel in palestine18 so the arabs joined forces to attack israel and seize palestine. the war lasted from 15 may 1948 to 10 march 1949 and was won by israel. israel's territory also increased beyond what was previously determined by the un. the defeat of the arabs in the 1948 arab-israeli war and the defeat of egypt in the 1956 suez crisis, led to six consecutive days of war on june 5 -10, 1967. this six-day war took place between israel and the united arab states, namely egypt, jordan, and syria. the three also received active assistance from iraq, kuwait, saudi arabia, sudan and algeria. on june 5, 1967, israel carried out an attack on an egyptian air force base for fear of an invasion by egypt. jordan then carried out attacks in west jerusalem and netanya. at the end of the war, israel conquered east jerusalem, the gaza strip, the sinai peninsula, the west bank, 18 jaya ahmad nurjaman, “trump’s peace to prosperity plan: kesepakatan untuk mewujudkan perdamaian israel-palestina,” dharmasisya jurnal program magister hukum fakultas hukum universitas indonesia 1, no. 2 (2021): 792. organization of islamic cooperation… afifah ayumia, putri andini, raden muhamad mahardika 108 and the golan heights. the result of this war is that it affects geopolitics in the middle east to this day. territories that have been conquered by israel still have a long story. the results of israel's victory also brought changes in religious terms such as a ban on entering the holy city of jerusalem. israel also makes it difficult for young muslims to worship for security reasons. as a result, the arabs wanted to reclaim the territories conquered by israel. the oslo i 1993 and oslo ii 1995 agreements were carried out by palestine and israel to achieve peace, but riots occurred again in the al-aqsa tunnel in 1996. israel continues to carry out aggression against palestine. israeli attacks escalated on gaza in 2008. israel launched rockets at hamas areas and civilians. hamas also took revenge against israel. palestinian civilians who have become victims made the conflict between the two countries heated up. israel has blocked all donations to the palestinian people. hamas immediately counterattacked every time an israeli zionist attack was launched. when the zionist army massacred muslims at the ibrahim mosque in the city of hebron, the zionists were also shocked by the retaliatory action from hamas. israel's arrogance paused for a moment. israel gained sovereignty over the palestinian territories, so the israeli territory continued to grow. the acquisition of sovereignty carried out by israel is through the annexation process. annexation is the result of violent aggression carried out by a country against another country or as a result of the use of force that is contrary to the un charter, can’t be recognized by other countries.19 the aggression carried out by israel is an international dispute because it is an armed conflict. israel's actions are getting more massive, causing many casualties, both from the palestinian people and the israeli people, thus getting the attention of the international community.20 israel's economic losses according to the israeli newspaper yedioth ahronoth are around usd 37 million per day during the fighting in gaza. the value of israel's economic losses incurred during the eight days of attacks on gaza is the same as that of the 50 days of attacks launched on the gaza strip in 2014. the newspaper reported that 4000 israelis demanded compensation for the damage to their homes, furniture, vehicles and buildings. factories, warehouses, companies, shops, and agricultural projects around gaza suffered heavy losses due to the rockets fired into gaza. meanwhile, tal inbar, former chair of the fisher institute's space research center, estimates the cost of israel's defense system, the iron dome interceptor, at $5,000 and $100,000, respectively.21 as a result of israel's bombardment of gaza caused losses and casualties. the losses incurred so far are as many as 16,800 housing units have been damaged. 1,800 unfit for living, 1,000 units completely destroyed and a number of other public facilities. 22 while the victims killed 5,736 palestinians and 251 died in israel.23 this case based on international law has violated human rights and violating international humanitarian law, where civilians, including women and children should be protected under the geneva convention iv, as well as health workers who should not be attacked under the additional protocols of the geneva convention i. many public facilities were also badly damaged, which should not be attacked, so that the aggression carried out by israel has caused a lot of losses and unnecessary suffering. 4. relocation of the united states embassy for israel to jerusalem 19 j.g. starke, pengantar hukum internasional 1 edisi keempat belas (jakarta: sinar grafika, 2018), 220. 20 setyo widagdo and rika kurniaty, “prinsip responsibility to protect (r2p) dalam konflik israelpalestina: bagaimana sikap indonesia?,” arena hukum 14, no. 2 (august 31, 2021): 314–27, https://doi.org/10.21776/ub.arenahukum.2021.01402.6. 21 hari ariyanti, “kerugian ekonomi israel capai usd 2,14 miliar selama serangan ke gaza,” merdeka.com, november 14, 2021. available online https://www.merdeka.com/dunia/kerugian-ekonomi-israel-capai-usd-214-miliar-selama-serangan-kegaza.html. 22 elba damhuri, “perang palestina-israel, ekonomi siapa yang paling hancur?,” republika.co.id, 2021. 23 agaton kenshanahan, “korban jiwa konflik yerusalem 2008-2021: palestina 5.736, israel 251”, kumparannews, november 14, 2021. available online https://kumparan.com/kumparannews/korban-jiwa-konflik-yerusalem-2008-2021palestina-5-736-israel-251-1vlnwws8xhg/full. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 109 palestine and israel were accepted as members of the un in may 1949. to maintain their existence, palestine and israel opened diplomatic relations with other countries. on december 6, 2017, donald trump as president of the united states declared that the united states embassy in israel would be relocated from tel aviv to jerusalem. donald trump's declaration indicates that the united states recognizes jerusalem as the capital of israel. l egally, this recognition doesn’t provide good things for the united states, but this recognition certainly has very complex political implications for the interests of the country concerned.24 donald trump's statement also caused controversy in various countries because it was considered to have violated the provisions of international law. the un has made efforts to resolve the conflict between israel and palestine, including through the issuance of un resolutions that are casuistic.25 un general assembly (unga) resolution number 181 of 1947 states about the determination of bethlehem and jerusalem as separate parts (corpus separatus) in the international zone, as well as the division of the palestinian territory into two states, palestine as much as 45% and israel by 55%.26 the un security council (unsc) also issued resolution number 242/1967 which requires israel to hand back jerusalem and other areas it captured during the six-day war, withdraw its armed forces from the occupied territory, recognize its integrity, sovereignty an d political independence, and respect the right to life in security and peace. 27 in the following year, the unsc again issued a resolution as a reaction because israel as a un member state didn’t comply with unga resolutions number 2253 and 2254/1967.28 unsc resolution number 252/1968 contained an affirmation that all israeli legislative and administrative actions were invalid, including the seizure of property and land leading to a change in the legal status of jerusalem. in 1980 the unsc passed resolution number 478 which rejected israel's recognition of the statement that jerusalem is the capital of israel and instructed all member states to relocate their embassies from jerusalem.29 the un reacted to donald trump's statement by issuing unga resolution number a/res/72/15 on november 30, 2017 which reaffirmed that israel's actions were illegal, null, and void, as well as coercion by israel on its administration, law, and jurisdiction in jerusalem has no validity and calls on israel to immediately stop all such illegal and unilateral actions. 30 the illegal relocation and inauguration of the united states embassy for israel from tel aviv to jerusalem was carried out on may 14, 2018. this policy was also supported by the jerusalem embassy act or the 1995 jerusalem embassy act which prompted the federal government to recognize that the capital of israel is the capital city of israel.31 jerusalem and moving the united states embassy for israel from tel aviv to jerusalem by may 31, 1999 at the latest. in 2017 the recognition of jerusalem as the capital of the state of israel act was issued which stipulates congress to: 24 mas nana jumena and efriyanto efriyanto, “pengakuan (recognition) amerika serikat pada wilayah golan suriah sebagai wilayah israel; (tinjauan dalam hukum internasional),” nurani hukum 2, no. 2 (august 15, 2020): 70, https://doi.org/10.51825/nhk.v2i2.8841. 25 aos yuli firdaus and yanyan m yani, “faktor penghambat perdamaian konflik palestina-israel,” jurnal sosial dan humaniora 5, no. 9 (march 19, 2021): 109, https://doi.org/10.47313/ppl.v5i9.824. 26 armando christofel wirajaya, “penyelesaian sengketa palestina dan israel menurut hukum internasional (stud y kasus perampasan wilayah palestina di israel),” lex et societatis 8, no. 4 (october 20, 2020): 48, https://doi.org/10.35796/les.v8i4.30909. 27 f o damura, a anwar, and ..., “penggunaan kekerasan sebagai cara memperoleh wilayah bertentangan dengan hukum internasional,” tatohi: jurnal ilmu … 1, no. 4 (2021): 301, https://fhukum.unpatti.ac.id/jurnal/tatohi/article/view/606. 28 afandi sitamala, “public discussion palestine as subject of international law” (jakarta, 2021), https://youtu.be/qik5hrli1wg. 29 khairul mufid jr., yerusalem propaganda pembawa petaka (yogyakarta: mueeza, 2019), 218. 30 yanuar albertus and i gede wahyu wicaksana, “the relocation of the united states’ embassy in israel: analysis of the influence of trump’s nationalist worldview and united states’ domestic politics,” jurnal global & strategis 14, no. 1 (june 8, 2020): 125, https://doi.org/10.20473/jgs.14.1.2020.125-142. 31 riktin noviani and garry gumelar pratama, “legitimization of jerusalem embassy act according to international law,” diponegoro law review 6, no. 1 (april 30, 2021): 108–22, https://doi.org/10.14710/dilrev.6.1.2021.108-122. organization of islamic cooperation… afifah ayumia, putri andini, raden muhamad mahardika 110 a. the united states legitimizes jerusalem's sovereign status in full as the capital of israel; b. fulfill the commitment of the united states government to israel by relocating the united states embassy from tel aviv to jerusalem; c. designation of jerusalem as the undivided capital of israel by the president and the united states department of state; d. the president of the united states must implement the provisions of the jerusalem embassy act 1995 and immediately carry out the process of relocating the united states embassy to jerusalem; and e. united states officials must comply with united states legal policies regarding the recognition of jerusalem as israel's undivided capital and the relocation of the united states embassy from tel aviv to jerusalem. in addition to the jerusalem embassy act, the relocation of the united states embassy was also supported by the ambitions of donald trump and the fulfillment of his political promises during the campaign for the election of president and vice president of the united states from 2015 to 2016. the impact of the relocation of the united states embassy to jerusalem caused criticism from various countries because it made it more difficult for peace between palestine and israel to occur, and lead to acts of violence. countries that have diplomatic relations with israel, such as the united arab emirates, singapore, morocco and england have their embassies located in tel aviv, this is because jerusalem is a corpus separatus based on unga resolution number 181 of 1947, so the relocation of the embassy from tel aviv to jerusalem is a violation of international law. 5. organization of islamic cooperation responses on the israel aggression and the united states embassy relocation to jerusalem the oic has committed to take responsibility for the good and peaceful survival of muslims around the world. with regard to what happened to palestine in 2018, where israel continues to carry out aggression against the palestinian people and the relocation of the united states embassy for israel to jerusalem, turkish president recep tayyip erdoğan as chairman of the oic for the 2017-2018 period invited all oic members to hold a conference of the seventh extraordinary islamic summit (eis) in 2018. the holding of the eis is the oic's way of making decisions. apart from the eis, oic decision-making can also be made by the secretary general of the oic, through the summit conference, or through the ministerial level conference. at the 2018 oic extraordinary summit, the main documents produced on 18 may 2018, in the form of a final communique, which essentially contained the oic's decision:32 a. condemn israel's criminal actions against the palestinian people, particularly in the gaza strip; b. declare israel's actions as barbaric crimes with the support of the united states government; c. calling on the international community, especially the unsc to uphold its legal obligations to defend, maintain international order, take responsibility for uncontrollable crimes, provide international protection for the palestinian people, and end israel's atrocities; d. call for international protection of the palestinian people, including sending international protection forces; e. requesting the oic general secretariat to act immediately by establishing an international independent expert committee tasked with investigating crimes and 32 paragraph 1-30 final communique of the seventh extraordinary islamic summit conference in response to the grave developments in the state of palestine 2018. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 111 massacres committed by israel against peaceful and unarmed demonstrators in the gaza strip which will then be assessed as wrongdoing by israeli officials and will be reported to the relevant international organizations; f. calls on the unsc, unga, un secretary general, un human rights council (unhrc), special rapporteur and un high commissioner for human rights to take the necessary actions to establish an international investigative committee on atrocities in the gaza strip; g. calling on the unsc, unga and unhrc to carry out their responsibilities by inviting all countries to mobilize their efforts to immediately bring this issue to the agenda of the unga, unsc and unhrc; h. appreciate kuwait's role as a non-permanent member of the unsc and its immediate reaction to the bloody events in the gaza strip which asked the unsc to convene an emergency meeting on 15 may 2018 to produce a resolution on the protection of civilian demonstrators; i. reaffirming the need to coordinate and cooperate with international and regional organizations, including the arab league, european union and african union on this issue; j. reaffirming the centrality of the palestinian struggle and the status of al -quds alsharif for muslims by inviting all countries to recognize palestinian sovereignty; k. repeatedly rejecting the illegal decision by the president of the united states to recognize al-quds as the capital of israel, that it is null and void, violates international legitimacy resolutions, and considers that the decision is an attack on the rights of the palestinian people that threatens international peace and security, condemned the inauguration of the united states embassy for israel in jerusalem, and designated the act as an act of provocation and hostility against muslims; l. reaffirming that al-quds will remain the eternal capital of palestine and the inauguration of the united states embassy in al-quds doesn’t change the legal status of jerusalem; m. affirming the support and role of the jordanian al-quds department and the islamic waqf of al-aqsa mosque in preserving and maintaining al-haram al-quds alsharif; n. praise the continued efforts made by his majesty king mohammad vi as king of morocco, chair of the al-quds committee, and the bayt mal al-quds agency in defending the holy city of palestine; o. considers any country that follows, accepts, or agrees to the steps of the united states administration to engage in undermining international law and order; p. calling on all oic member countries to publicly condemn the actions of the united states and israel, as well as to defend palestinian national rights; q. affirming that the countries that run for international office will be supported by the oic based on their role regarding the problems afflicting palestine; r. urge all oic members to be responsive to oic resolutions on the palestinian struggle; s. requesting oic member countries to impose economic restrictions on israel; t. calling on oic member countries and other international organizations to embargo israeli products; u. decided to take all measures, whether diplomatic, legal, or political, to defend the legitimate rights and aspirations of the palestinian people; v. requires the united states to comply with international legitimacy resolutions relating to palestine; organization of islamic cooperation… afifah ayumia, putri andini, raden muhamad mahardika 112 w. calling on the united states to oppose the israeli occupation and impartially in order to achieve peace based on un resolutions, international law, the arab peace initiative, and based on the principle of the two-state solution; x. reaffirming the oic's compliance with all adopted resolutions on the issue of palestine and al-quds al-sharif, and calling on oic countries to ensure the implementation of these resolutions in their foreign policy; y. affirming that the oic will continue to act in accordance with international law and cooperate with countries that share the same principles regarding palestine to continue to assist palestine; z. emphasizing that the oic cooperates with united nations educational, scientific and cultural organization (unesco) and remains committed to allocating all necessary resources to maintain the status of the al-aqsa mosque complex; aa. calling on oic member countries to continue to implement previous oic resolutions as a framework that will determine priorities and support the needs of al-quds alsharif; bb. underline the importance of united nations relief and works agency (unrwa) providing vital services to more than 5.3 million palestinian refugees, and urges oic member states to increase their support for unrwa initiatives; cc. establishing the development of a waqf fund as a means to further support the palestinian refugees; dd. reiterates the oic's support for palestinian refugees to return to their homes based on unga resolution number 194 and emphasizes the importance of recognizing the crimes of ethnic cleansing and murder against the palestinian people that have occurred since the past 70 years as a necessary first step to achieve justice and peace. the oic rejected the us administration declaration, which recognized al -quds as israel's capital, the occupying power, and the decision to relocate its embassy to al-quds and demanded they overturn this decision in compliance with un resolutions as well as international law. in addition, the oic condemns the declaration of the president of the united states and considers this a blatant attack on the historical rights, laws of the palestinian people, freedom and independence of muslims by deliberately undermining efforts to achieve peace that threatens international peace and security. condemns and unjustified the actions of the united states congress in supporting the colonialist and racist policies and practices of israel, the occupying power and the crimes it commits, including the crime of ethnic cleansing. affirming palestinian sovereignty over all palestinian lands including east jerusalem, and stressing the need to implement any measures to prevent changes to the historical, legal or religious status of the city of al -quds al-sharif. considering this dangerous declaration, which aims to change the legal status of al-quds alsharif city, is null and void, has no legal value, and has no legitimacy as a serious violation of international law. the oic also called on the un to end the israeli occupation of palestine and held the trump administration responsible for all consequences by not withdrawing from this illegal decision. calling on member states and the oic general secretariat to support palestine's efforts to join international institutions and agreements, including full membership of the un, as well as checking the legality of israel's membership, and further urges all countries with embassies in tel aviv not to follow the steps of the united states. reaffirming that all activities of the palestinian state which were taken over by israel have imposed laws and administrative procedures on the city of al-quds is an illegal act, therefore it doesn’t apply according to the resolution. as one of the international organizations, the oic certainly acts as a subject of international law that has the authority to create certain rules of international law that have binding power lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 2, july-december 2022 e-issn: 2723-2603 113 for its members. with the holding of oic extraordinary summit and the issuance of a decision by the oic, the oic has carried out its responsibility to maintain the security and peace of muslims in the world. in addition, with the violation of unga resolution number 181 of 1947 and unsc resolution number 252/1968, the un security council may impose sanctions on the united states. c. conclusion with the occurrence of israel's aggression against palestine and the relocation of the united states embassy for israel to jerusalem, it has caused criticism from various countries. this became a focal point for the oic to carry out an extraordinary summit in 2018 as a form o f its responsibility in maintaining peace and security of muslims in the world. the decision from the extraordinary summit is certainly binding on oic member countries. the oic also rejected the us administration's declaration in december 2017, which recognized jerusalem as israel's capital, the occupying power, and the decision to move its embassy to jerusalem and demanded they overturn this decision and comply with un resolutions and international law. references adhim, syahrul, and yuliati yuliati. “konflik terbentuknya negara israel pada tahun 1948 1973.” asanka: journal of 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(october 20, 2020): 48. https://doi.org/10.35796/les.v8i4.30909. 15 the relevance of gender mainstreaming in indonesia to women's rights in islamic law rossa ilma silfiah1, humiati2 1 universitas yudharta pasuruan, indonesia, e-mail: rossasilfiah@gmail.com 2universitas merdeka, indonesia, e-mail: humiatiariyono@gmail.com submitted: october 11, 2022; reviewed: march 09, 2023; accepted: march 27, 2023 article info abstract keywords: gender mainstreaming, women's rights, islamic law. doi: 10.25041/lajil.v5i1.2757 gender mainstreaming is a government effort in upholding women's rights, because women's rights are an inseparable part of human rights. protection of human rights is a state guarantee which is given to its citizens as a manifestation of the objectives of the pancasila legal state as stated in the preamble to the 1945 constitution of the republic of indonesia. in indonesia, gender mainstreaming has been established through presidential instruction number 9 of 2000 concerning the implementation of gender mainstreaming (pug) under construction. this study will focus on gender mainstreaming on the development in indonesia and the development of justice and gender equality in islamic studies. protection of human rights is the main goal in the application of islamic law, including the protection of women's rights that has always been a major topic in islamic studies and gender. by using qualitative descriptive method, it will be easy to find islamic ideas, social activities at the time of the prophet about women's rights. if examined comprehensively, in pre-islamic history, namely the period of ignorance, it was a period that greatly demeaned women. at that time, if a baby girl was born, she would be buried alive right away, or if she was allowed to live, she would suffer humiliation. the purpose of this study is to find a conclusion that emphasizes women's rights which have been neglected so far, even though the use of religious arguments often prevents women from obtaining their rights. so with this affirmation, it is hoped that it will be able to control violence against women which has often occurred. through gender mainstreaming, development is to achieve gender equality and justice (kkg) through integrating the experiences, needs, aspirations of women and men into various policies and programs starting from the planning, budgeting, implementation, and monitoring stages. volume 5 number 1, march 2023: pp. 15-28. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil the relevance of gender … rossa ilma silfiah and humiati 16 a. introduction gender mainstreaming is the process of incorporating women's experiences as an integral dimension in the formulation design, implementation, and evaluation in any planned action, including laws, policies, or programs to eliminate inequality and achieve gender equality. the way to incorporate women's experiences, eliminate inequality, and achieve gender equality was explained at the beijing conference through the involvement of women in the realm of government. in indonesia, this regulation was first stipulated in presidential instruction no. 9/2000 on gender mainstreaming in national development during the reign of president abdurrahman wahid. 1 state protection of women is a necessity in running the government. one of the characteristics of the rule of law is to provide protection for the human rights of its citizens to realize the general welfare, and the arbitrary actions of the authorities. the rechtstaats concept or the rule of law place elements of legal protection for human rights side by side with other elements. because the discussion of human rights is to discuss all dimensions of life. 2 gender justice is an important issue in islam and is closely related to women's rights that must be upheld. knowledge about justice and gender equality is often studied in the world of formal and non-formal education, but in practice it is still very far away. this is very evident when women enter the household and the public sphere. more and more prominent, in recent years quite a lot of female sexual victims are even underage. the moral disaster that has occurred recently has deeply affected the indonesian people, regarding cases of sexual violence against underage women. this matter greatly occupied the public's attention because these cases occurred in islamic boarding schools which are known as trustworthy in educating the nation's children. this is a public concern that requires immediate government attention and action. homework for the government which is currently urgent to do is handling cases of violence against children. based on reports on the online information system for the protection of women and children (simponi ppa) until june 3, 2021, there were 3,122 cases of violence against children. from these data, the number of sexual violence still dominates. deputy for special child protection at the ministry of women's empowerment and child protection (pppa) nahar said that there were still incomplete and not completed handling of cases of violence, and no other follow-up. 3 we may often hear and read about women's conversations, both in print and in electronic media, especially about gender issues that have not yet been discussed and are even controversial among the muslim community today, in the book perempuan dan ketidak adilan sosial written by mahatma gandhi, stated that women have always been the object of violence and are not seen as human beings, where in social class they are always the object of violence, such as violence in marriage, crime of prostitution, and many widows who are still underage. 4 surprisingly, with the progress of the times, it did not reduce this violence rate. women’s commissions at the end of 2020 released a data record entitled "perempuan dalam himpitan pandemi” or women in the hump of a pandemic, in the note several data were obtained, including in the midst of covid-19, the number of cases of violence against women (ktp) was 299,911 cases, these cases were handled by the district court/religious court (pn/pa) as many as 291,677 cases. a total of 8,234 cases were handled by women’s commissions partner service institutions, and 2,389 cases handled by the women’s commissions 1 ashilly achidsti, gender gus dur: tonggak kebijakan kesetaraan gender era presiden abdurrahman wahid (yogyakarta: gading publishing, 2021) 5. 2 rossa ilma silfiah, otoritas negara terhadap agama dan kehidupan beragama di indonesia (pasuruan: yudharta press, 2018) 33. 3 risna halidi, “data kemen pppa: laporan kekerasan seksual pada anak masih mendominasi”, (7 june 2021), online: <https://www.suara.com/health/2021/06/07/202416/data-kemen-pppa-laporan-kekerasan-seksual-pada-anak-masihmendominasi>. 4 mahatma gandhi, kaum perempuan dan ketidak adilan sosial (yogyakarta: pustaka pelajar, 2011) 5–10. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 17 service and referral unit (upr), with a record of 2,134 cases were gender-based cases and 255 cases of which were not gender-based or provided information. 5 the data shows that cases of violence against women until the covid-19 pandemic still occur. moreover, the country is in a state of emergency, so that the government's focus is reduced to think about cases of violence against women. the use of the words wanita and perempuan also has an effect on developing social conditions. before the reformation era, the word wanita was often found, which the javanese said, wani ditata-tata (that woman must be ready to be regulated). meanwhile, the word perempuan from that point on was synonymous with women who were not good. however, during the reformation era, the word perempuan was used more. because it comes from the word empu which means to be appreciated, according to hamka, it is said that the empu as the finger master are the reinforcement of the finger, the finger cannot grip tightly, hold firmly, if the master finger is not present. 6 in arabic, women are equated with the word nisa'. some said that the word nisa' comes from the word nasiya which means forgetting due to a weakness of mind. 7 from the use of this language, discrimination appears in the social sphere, so that it always places women in the second class after men. in general, there is no difference in rights between men and women, this is explained in surah an-nisa' verse 32: meaning: for men there is a right/share of what they work for, and for women there is a right/share of what which she worked on. this verse explains that there is no difference between men and women in what they strive for. the difference that is used as a measure to elevate and lower their degree is only the value of their devotion and piety to allah (qs. al-hujurat: 13). for islam, a good woman is a woman who runs life as optimally as possible according to the qur'an and hadith, is able to carry out her functions, rights, and obligations, both as servants of allah. this is contained in the surah an-nahl, verse 97: which means: whoever does righteous deeds, both men and women in a state of faith, we will indeed give them a good life and indeed we will reward those who are more generous, better than what they have done. this verse also explains that in good deeds and faith the position is equal between men and women. each of them is equally able to grow faith in the heart and do good deeds as optimally as possible. so women are no less responsible than men in upholding faith in allah and doing righteous deeds. therefore, both of them are promised by allah that they will be given a good life (hayatan thayyibah), because men and women are equal before allah, that is, they are both his servants. and the noblest of them is the one who is more pious. 8 the qur'an rejects views that discriminate between men and women by asserting that they are both of the same breed and that from both of them god created offspring that are both male and female. with this consideration, god confirms that. meaning: "verily allah does not waste the deeds of those who do good deeds, both men and women" (qs. 3:195) on this basis, it can be said that every man and woman have the same rights, because there is not a single provision in the qur'an that can be understood as prohibiting the involvement of women in social life. we can also find this reality at the time of the prophet, companions, tabi'in, and the heyday of islam even today. they appear in various fields. the prophet himself was very fond of active women, it was proven that his wife khadijah was a successful businesswoman and conglomerate, and his other wife, aisyah, was a scientist in the field of hadith, and was given 5 rifa’ rasyaadah & rahayu, “perlindungan hak asasi manusia perempuan terhadap kasus kekerasan dalam rumah tangga di indonesia dalam perpektif hukum internasional” (2021) 12 no 2 jurnal ham. 6 zaitunah subhan, tafsir kebencian, studi bias gender dalam al-qur’an (yogyakarta: lkis, 1999) 17. 7 louis ma’luf, al-munjid fi al-lughah wa al-i’lam (dar almasyrik, beirut, 1986) at 807. 8 nur hayati & mal al fahnum, “hak-hak perempuan menurut perspektif al-qur’an, marwah, jurnal perempuan, agama dan jender” (2017) 16, no. 2 188. the relevance of gender … rossa ilma silfiah and humiati 18 the opportunity to participate in the struggle. while the caliph umar ibn al-khatab appointed ash syifa '(w640 ad) to handle the market in medina. 9 in accordance with the problems mentioned, the research on gender mainstreaming and women's rights in islamic law uses normative legal research. 10 it is hoped that this normative research method will be able to be examined and reviewed the norms and principles of gender equality and women's rights. research on legal norms and principles is commonly referred to as doctrinal research. 11 this doctrinal research will be reflected in the efforts to inventory positive law, and the efforts to discover the principles and philosophical foundations (dogmas and doctrines) behind it. as a legal consequence of the existence of the first precept of god almighty, the concept of islamic law is one of the sources of material law which is explored with a value-oriented approach 12 in order to take the values of equality in islam. besides, the existence of the shari'ah concept will also be a framework for the arguments 13 in this study. b. discussion the domestication of women in indonesia was once massive in the form of policies that curbed women's freedom during the soeharto era. domestication of women is a concept about the subordination of women's position under men. in 1972, the soeharto government launched the family welfare empowerment program (pkk) in all rural areas of indonesia with the jargon of panca dharma wanita, namely: 1) women as husband's companions, 2) women as housewives, 3) women as successors and child educators, 4) women as additional breadwinners, and 5) women as citizens and members of society. 14 this program continues to this day, but with dynamics that also adapt to current conditions. the government has made quite strict regulations regarding the equality of women's rights, these regulations have been in effect both nationally and internationally. but the people are still strong with a patriarchal culture that is believed to be passed down from generation to generation. 15 even at the level of state administration, there is discrimination and injustice against women. women are often victims of progress in the fields of economy, education, health, employment, and politics. in a society with a patriarchal culture, men are more involved in holding power, which can automatically reduce the role and existence of women. even though in this reformation era women have started to emerge and occupy strategic positions, on the other hand, there are still many women who are victims of violence. in global discourse, gender mainstreaming has begun to be applied in various countries since the 1995 beijing conference which prioritizes women's empowerment and gender mainstreaming in government. the existence of the beijing conference which raised gender mainstreaming was the result of the development of the two previous streams, namely: women in development, and gender and development. women in development (wid) is a strategy to open up access for women to be equal in education, because this stream considers the inability of women to be caused by inequality in socio-cultural access. this implementation, in indonesia, can be seen with the existence of the 9 ibid 190. 10 soerjono soekanto, pengantar penelitian hukum (jakarta: ui-press, 1986) 81. 11 zainuddin ali, metode penelitian hukum, 4th ed (jakarta: sunar grafika, 2013) 88. 12 barda nawawi arief, bunga rampai kebijakan hukum pidana: perkembangan penyusunan konsep kuhp baru (jakarta: kencana prenadamedia, 2014) 29. 13 ali, supra note 11 73. 14 achidsti, supra note 1 2. 15 dede kania, “hak asasi perempuan dalam peraturan perundang-undangan di indonesia” (2015) 12 no 4 jurnal konstitusi. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 19 youth ministry for women's roles in 1978. however, this approach has not been able to reduce the violence experienced by women, public, domestic discrimination, or exploitation of women. the gender and development (gad) was born around the 1980s. according to this approach, women are victims of development because of the injustice of relations in the public and private spheres. therefore, strengthening the position of women is increased beyond what has been done in women in development. from this approach, the convention on the elimination of discrimination against women (cedaw) was born. however, the drawback is that it does not make explicit the barriers to women's glass ceiling in public institutions. the class ceiling is an obstacle for women not being able to occupy significant positions in the realm of government institutions. 16 cedaw is a testament to the long history of international women's struggle for gender equality with men. since the 1979 united nations conference in mexico city which discussed women, where it was agreed that women's rights were equal to men's rights, so that in 1984, cedaw was agreed internationally which essentially contained an agreement that women have equal rights to men. juridically, cedaw is the legal basis for the protection of women's human rights throughout the world, meaning that when a country signs cedaw and ratifies it in national law, that country is bound to cedaw. 17 as a consequence and becoming a common need, indonesia must also harmonize the law, namely ratifying cedaw and implementing it in national laws and regulations. a challenge that is quite tough for the indonesian nation, even though a woman has once led this country, president megawati soekarno putri, but this struggle has not made a significant contribution to elevating women's status. equality is difficult to achieve, especially in the field of law where the struggle for justice is still far from expectations.. 18 gender mainstreaming, which is enacted in the form of a presidential instruction, is one of the other laws and regulations. among the laws and regulations that contain the content of protecting women's human rights are: law number 39 of 1999 concerning human rights, law number 23 of 2004 concerning the elimination of domestic violence, law number 12 of 2006 concerning citizenship, law number 21 of 2007 concerning eradication of the crime of trafficking in persons, and political laws (uu no. 2 of 2008 and law no. 42 of 2008). presidential decree no. 181 of 1998 concerning the establishment of the national commission on violence against women or komnas perempuan which was amended by presidential decree no. 65 of 2005. the reform era has changed the mindset of society about women. especially the gus dur era which issued presidential instructions no. 9 of 2000 concerning gender mainstreaming. these instructions carry a huge impact until now. the large number of women occupying strategic posts as decision makers, along with laws and regulations that elevate women's status and protect women. for example law no. 23 of 2004 concerning the elimination of domestic violence. and at this time law no. 12 of 2022 concerning crimes of sexual violence. an extraordinary historical leap, has changed the development of women themselves. in order for this research to be more comprehensive, it would be better to understand the meaning of gender from various sides. what is the meaning of statutory regulations, if they are not understood starting from the exact root of the problem. the struggle for women's rights has gone through a very long history. therefore, the following definition of gender in terms of biological and social will help the problem of gender inequality so far. the use of the word gender in different terms from sex, gender relates to social roles in life that can be performed by both men and women. this role has nothing to do with the biological signs 16 achidsti, supra note 1 80–81. 17 rasyaadah & rahayu, supra note 5, 268. 18 kania, supra note 15 718. the relevance of gender … rossa ilma silfiah and humiati 20 that humans carry from birth. then the term gender must be separated from sex, which refers more to a person's genetic or physical identity.. 19 from the above understanding, conclusions can be drawn about gender. gender cannot be separated from society's culture, because gender is shaped by culture. the views of one society will be different from other societies, this is in accordance with the cultural constructs that develop in a society. so that the gender roles between men and women differ from one society to another. traditional javanese society is still thick with patriarchal culture, cooking is a woman's job and is her main task in her role as a housewife. meanwhile, men are considered inappropriate when it comes to cooking. however, in modern javanese society, cooking is not only considered a woman's job, but is a shared task that is carried out according to opportunity by adjusting to each other's busyness. the word gender comes from english which means sexual role. 20 in the women's studies encyclopedia, it is explained that gender is a cultural concept, trying to make a difference (distinction) in terms of roles, behavior, mentality, and emotional character between men and women who develop in society. hillary m. lips in her book sex and gender:ian introduction defines gender as cultural expectations for women and men, for example, women are known to be gentle, beautiful, emotional, and motherly.iwhile men are known to be strong, rational, manly, and mighty.ithe characteristics of these traits are traits that can be exchanged, for example there are men who are gentle, and on the contrary there are women who are strong and rational. changes in these characteristics can occur from time to time or place. 21 biologically,ithe differences between men and women are not interchangeable. because it is a gift of allah almighty to give different biological functions between the two. so the elimination of gender discrimination must not deny a clear biological reality. if the female reproductive function is suppressed, then life on earth will not survive. as a social phenomenon, gender is relative and contextual, the gender known in bali is different from the gender in minang, and also different from the javanese society. the phenomenon of the difference between men and women is not really a problem for the majority. these differences become problematic when they result in injustice, in which certain sexes gain a superior position over others. in this term, the struggle against gender inequality does not only touch on practical issues, but has entered the realm of philosophy and religion. this study will focus on the study of gender in religion, namely how islam regulates justice and gender equality in both the domestic and public spheres. because in this country with the ideology of pancasila, religion is a source of legal exploration in solving various problems. table: differences in terms of sex and gender sex gender biological social culture god’s gift is universal (anywhere at any time) taught through local and temporal community socialization can’t be changed can be changed 19 m ainul yaqin, pendidikan multikultural, cross cultural understanding untuk demokrasi dan keadilan (yogyakarta: pilar media, 2005) 115. 20 john m echols & hasan shadily, kamus inggris indonesia (jakarta: gramedia, 1983) 265. 21 mansour faqih, analisis gender dan transformasi sosial (yogyakarta: pustaka pelajar, 1997) 8–9. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 21 biological roles between men and women are not interchangeable social roles can be exchanged according to local social culture agreements men = production women = reproduction educating children, cooking, cleaning the house, making a career in the public world are done by both men and women according to mufidah 22 in many studies it is proven that the standardization of roles and views that are gender biased are sourced from patriarchal and matriarchal cultures which have the potential to cause injustice to both women and men. patriarchal culture tends to prioritize men over women. on the other hand, matriarchal culture tends to prioritize women over men. the manifestations of gender injustice originating from the culture mentioned above are: 23 1. stereotypes labeling of male or female gender always has a negative connotation so that it often causes problems, for example women/females are weak, timid, fussy, and emotionally unable to take responsibility and so on. while men/males are seen as strong, hard, rude, rational, selfish, and jealous, this kind of labeling will be detrimental to both, because it will have implications for an unequal division of roles and injustice. 2. subordination an unfair view of one gender based on gender stereotypes causes the placement of one gender in unequal and fair status, roles, and relationships. usually, men are considered superior to being in a superordinate position, which has a lot of roles in production and decision-making, while women are considered to be in a subordinate position, this position is an obstacle to access to participation, a control function especially related to decision making. 3. marginalization it is a process of marginalization, either intentionally or unintentionally, of a certain gender from the other gender systematically from gaining access to, and benefiting from in life as a result of stereotypes and subordination. the impact is that women are far behind men in various aspects of life in society, from education, economy, and politics. 4. disproportionate workload coercion and or neglect of one gender to bear the burden of excessive activity caused by standardization of productive-reproductive roles for men and women which then has an impact on an inflexible pattern of division of labor, dichotomous work patterns on the basis of gender, thus, this can trigger gender inequality due to the doubled workload. this is experienced by women in addition to act as housewives whose duties are infinite, especially if she works too, the burden is borne by a woman, not that she can play a double role but she has multiple job duties and responsibilities. 5. gender based violence the gender bias view that places men as superior and women as inferior, has an impact on nonequal hierarchical relationships, this unequal gender relationship is prone to violence where the more powerful party commits violence against the controlled party. in general, gender-based 22 mufidah, paradigma gender (malang: bayu media publishing, 2003) 51. 23 mufidah, supra note 22. the relevance of gender … rossa ilma silfiah and humiati 22 violence is more experienced by women than men. this is based on the dominant perception that women are weak creatures lacking independence.24 the study of islamic law regarding to the equality of women and men is widely stated in the qur'an, the following verse: “indeed, muslim men and women, believing men and women, men and women who are obedient, righteous men and women, patient men and women, humble men and women, men and women who give in charity, men and women who fasts, men and women who keep their honor, men and women who mention (name) allah a lot, allah has provided forgiveness and a great reward.” (qs al-ahzab, 35). 1. islamic studies on woman islamic studies that explain the existence of women are the result of islamic theologian interpretation, most of whom are male theologians. so that, most interpretations in religion tend to be gender biased. this can be seen from the following interpretation/comprehension:25 a. interpretation/comprehension of woman status from which she was created. among muslims, there is a deep-rooted belief that eve was created from adam's rib.ithough this story is not from the qur'an, but from the bible. whereas in the qur'an surah an-nisa 'verse 1 explains: “o mankind, fear your lord, who created you from the same kind and from it allah created mates and dispersed from both of them many men and women.” the above verse shows that the creation of men and women of the same kind. the interpreters as well as the interpretation of the ministry of religion of the republic of indonesia interpreted that what is meant by the same kind, namely from one person (adam). quraish shihab also explained about curved ribs as in the hadith narrated by bukhari, it must be understood in the sense of majazi (figuratively). that is, the hadith warns men to deal with women wisely.ibecause there are traits, characteristics, and their tendencies that are not the same as men. if men are not aware of this difference, it will lead them to an unnatural attitude. the traits and characters of women that are not the same as men, if it forced to be changed, it will be as fatal as straightening a curved bone. b. interpretation/comprehension of women brings disaster satan's temptations are aimed at men and women, as in surah al-a'raf verse 20 “then the satan whispered evil thoughts to both of them”. the verse is shown in the form of mutsanna (two people), adam and eve. even in surah thaha verse 120i“then satan whispered to him; he said, "o adam, shall i direct you to the tree of eternity and possession that will not deteriorate?”. this verse is a refutation of the view that it is women (eve) who are tempted and used by satan, so that they are expelled from heaven. therefore, it is not true that women are the source of disaster. c. interpretation/comprehension of violence against women husbands are given the right to educate wives who are nusyuz (disobedient, disrespectful to the husband) as in an-nisa 'verse 34, through three ways: advising, separating from bed, and hitting. these three ways should performed gradually. hitting can only be performed when the wife doing nusyuz repeatedly. according to imam syafi'i, the husband may only hit without injuring, not on her face or head. fiqh scholars agree that it is better to avoid hitting, because the prophet saw said: "do not do violence to women". aisha also said that the prpohet muhammad never hit his wife, nor 24 mansour faqih, supra note 21. 25 huzaemah t yanggo, fiqh perempuan kontemporer (jakarta: al-mawardi prima, 2001). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 23 his maid. he did not do that, unless allah's rules are violated by her. judging from the context, wife beating is allowed if the woman's attitude has gone too far in violating religious rules or disrespecting her husband. d. interpretation/comprehension of the right to break the marriage divorce is the right of the husband. on this basis, some husbands act arbitrarily against their wives. in the household, the wife is entitled to good treatment from her husband in accordance with the word of allah in an-nisa 'verse 19i"and live with them with kindness". appropriate/good treatment is such as polite act done by the husband to the wife, then the wife will be polite to the husband. in islam, the wife is also given the right of khulu' (divorce suit) after a reconciliation effort through a third party (hakam) if the husband does not want to provide a decent living, or if the husband commits rudeness, cheating, and immorality. e. interpretation/comprehension of the differences in the urine of boys and girls in the hadith of the prophet muhammad narrated by bukhari and muslim from ummi qais (umairah), that he brought his son who was still small and had not eaten food other than breast milk, then the messenger of allah put it in his room and the child urinated. then the prophet muhammad asked for water and sprinkled it on the urine and did not wash it. the hadith narrated by turmudzi and another hadith of hasan are also mentioned, "the urine of a girl is washed, and the urine of a boy is sprinkled with water". according to al-mahalli who narrated the book of minhaj at-talibin in syafi'i fiqh, it is said that the difference in urinary purification for boys and girls is because boys are carried more than girls. boys pee less in one place because it is scattered, while girls pee accumulate in one place. so it does not mean that the degree of sanctity of girls is lower than that of boys. 2. women's rights in islam a. women's rights in education sitting in the same class, reading the same book, listening to the same teacher, male and female students receive different education. although initially female students performed better than male students on every measure of achievement, by the time they graduated from college, and entered society, women were left behind. this gap is caused by gender socialization in schools and the existence of a gender biased hidden curriculum that makes female students less aware of changes in the classroom. socialization about feminism has been instilled by schools from an early age, women are valued for their gentleness, urbanity, and friendliness, while men are encouraged to think independently, be active, and talk a lot.26 the hidden education applied in schools so far is actually very contrary to the teachings of islam.ithe hadith of the prophet pbuh "seeking knowledge is an obligation for every muslim". islam does not differentiate between education for men and women. even in worship, the sharia’s imposed on women is actually greater, such as knowledge about menstruation, childbirth postpartum, the procedure of covering the aurat or nakedness. this shows that the science should be learnt by the women are more than men. b. women's rights in the household 26 zakiyuddin baidhawi, pendidikan agama berwawasan multikultural (jakarta: erlangga, 2007). the relevance of gender … rossa ilma silfiah and humiati 24 domestic life, the relationship between husband and wife is likened in the qur'an to libas (arabic) or clothing. clothing has a deep meaning, it serves as a cover from the heat of the sun and the cold air. this means that husband and wife cover each other's nakedness (aurat), functioning as jewelry that provides beauty and comfort to both. so between husband and wife, there is actually no difference in degree, one is higher than the other, because the two are covering each other's shortcomings and being each other's adornment. in an-nisa' verse 34, there is term qawwam which means leader, protector, person in charge, educator, regulator, and so on according to the interpreters. furthermore, the advantages of men over women lies in their intellectual and physical superiority. each of these meanings describes the supremacy of men (husbands) over wives. muslim feminists try to provide a contemporary interpretation of the term qawwam as men who are obliged to provide a living (production function), as well as supporting the reproductive function of the wife, and the wife as the bearer of the reproductive function. the rights of mother as the bearer of reproductive function must be guaranteed by her husband (father) both in the form of a living (economy) as well as her health and safety.27 the term qawwam appears three times in the qur'an; an-nisa': 34, 135 and almaidah: 8. in surah an-nisa': 135 and al-maidah: 8, it is not interpreted as a leader, but as "standing for allah", "straight for allah", "those who always uphold (the truth) for allah". why the meaning of qawwam in the verses related to women/wives is different, that is to be a "leader"? in the lisanul arab dictionary, the term qawwam means "men are the guarantors and guardians of your women's affairs". so the meaning of protector, supporter, and person in charge/guarantor (associated with the obligation to provide a living) is more appropriate. because leadership is not only imposed on men, but leadership is the nature of all believers, both men and women. 28 c. women's reproductive rights the role of women in terms of reproduction is very important in a household, because the household is a determining institution for the existence of future generations. lies marcoes natsir emphasized that the discourse on women's reproductive rights cannot be separated from religious discourse. meanwhile, so far, fiqh has not paid attention to the reproductive role of women. 29 so far, there is still a confusion of understanding between the rights and obligations of husband and wife. justice according to islam is the fulfillment of a balance between rights and obligations. logically, the more responsibilities, the greater the rights that will be obtained. many people think that the husband's responsibility or production responsibility in earning a living is heavier than the wifes (reproductive burden: pregnancy, childbirth and breastfeeding). 30 the responsibility is equally heavy, therefore it cannot be said to be heavier. in the qur'an surah al-an'am verse 132 saying "and each person gets degrees (balanced) with what he does..." currently, the support for the family economy is not only borne by the husband, many wives are also responsible for supporting the family. islam does pay attention to the biological nature of women in carrying out their obligations. such as the fall of the obligation to pray during menstruation and childbirth, but these biological differences do not necessarily distinguish social status, resulting in the loss of equality between women and men. in islam, family life has a special 27 mufidah, hlm. 64 28 subhan, supra note 6. hlm, 105. 29 mufidah, 65 30 subhan, supra note 6. hal. 198 lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 25 philosophy regarding the rights and responsibilities of men and women. both have the same and equal rights and responsibilities. d. the rights in public spaces the people of south asia and the countries of the middle east are heavily influenced by the misguided teachings of islam. seclusion is still strong enough to limit the movement of women in the public world. women are required to wear a veil when leaving the house. even in the house, women are only allowed to occupy certain places, namely, the kitchen. in indonesia, especially in java, the term seclusion is also known, but only before the wedding ritual. women are always associated with femininity which is very thick developed in southeast asia.31 women's rights in public spaces in the qur'an surah al-ahzab verse 33 are indeed limited. lafadz qarna in the verse is meant to stay at home (house building, not household), she can only to go out due to emergency. abul a’la al-maududi in his book al-hijab reads qirna, meaning "stay in your family environment calmly and respectfully". so that the wife is allowed to go out that it is not an emergency but needs and necessities.iwomen have the right to work (activities outside the home) as long as they need it or the job requires it and as long as religious and ethical norms are maintained.32 e. rights in politics regarding politics, the qur'an shows women who are independent of their husbands, giving bai'at (faithful promise) to the prophet (qs. al-mumtahanah: 12). a number of women converted to islam before their husbands. the phenomenon proves that the political role of women in islam has existed since the time of the prophet. aisyah, the prophet’s wife also took an important role in politics until his involvement in the jamal war. 3. the role of woman in islamic history islam came to make fundamental changes to the practice of jahiliyah life that discriminated against women. the prophet as the last prophet on a macro level attempted to raise human dignity with the mission of rahmatan lil-'aalamiin, by defending women's rights which had never been obtained. therefore, by some muslim feminists, he is considered the first feminist in islam. epistemologically, the process of gender equality formation carried out by the prophet not only in the domestic sphere, but touches all aspects of community life. women as mothers, children, wives, neighbors, and as members of society at the same time provide security guarantees for the protection of basic rights that have been granted to them by allah. thus, the prophet had started a new tradition in the view of women because of the following: first, he carried out a major overhaul of the world view of arab society, which at that time was still dominated by the perspective of the people of the pharaoh era (qs. al-nahl: 58-59) in which the historical background that accompanied the construction of society in it was misogynistic.33 when the prophet muhammad was blessed with a son, the child died when he was still a child. this holds a valuable lesson that the cult of sons did not occur at the era of the prophet, where a habit that was seen as spectacular, he often carried his daughter (fatimah) demonstratively in public, which was considered taboo by arab tradition at that time. what the prophet saw was a process of forming a discourse that men and women should not be discriminated. 31 ratna saptari & brigitte holzner, perempuan kerja dan perubahan sosial (jakarta: pustaka utama grafiti, 1997). 32 shihab, m quraish, wawasan al-qur’an (bandung: mizan, 1996). 33 mufidah, hlm. 37 the relevance of gender … rossa ilma silfiah and humiati 26 second, prophet muhammad gave an example of good behavior (mu'asyarah bil-ma'ruf) towards women throughout his life. he never committed violence against his wives, even when each had a chance to be jealous of each other. in one narration, he said "it is best for you all to treat your wives the best, and i am the best of you for my wives". the status of women at the era of the prophet can be seen in their involvement in a number of important roles that have historical-monumental meaning, such as in the process of narrating hadith and the formation of early islamic discourse. a number of opinions circulating among companion biographers say that there is no doubt, the role of women is enormous in this regard. ibn ishaq, the author of an early biography, mentioned no less than 50 women as narrators of hadith. in the book of almuwatha', there are also quite a few hadiths narrated by women. historical data shows that women have contributed significantly to the writing/bookkeeping of the qur'an, as is hafshah bint umar, who is a memorizer of the qur'an and is good at reading and writing. women are also believed to hold vital things related to the muslim community, for example, women first learned about revelation. they hold a secret in the form of the prophet's hiding place before his migration to medina. before the prophet's death, several selected women from the muslim community were asked for their opinion on who should succeed the prophet. in the field of education, the prophet muhammad gave women the opportunity to study islam with him on certain days. aisyah is recorded as a woman who narrated many hadiths and performed ijtihad as many as 200 fatwas independently, and 600 fatwas together with other companions. as a leading hadith scholar, aisyah has narrated hadith in the early period reaching 2,210 hadith. imam bukhari and imam muslim, who are known to be very strict, have set standards of hadith authenticity, both of which include 300 hadiths in their collection of hadiths. 34 c. conclusion the concept of gender is not new in islam, even the prophet muhammad was a pioneer as well as a breaker during the downturn of women in his time. the teachings that are brought are very respectful of the existence of women from birth. why not, in the history of the prophet's life, there have been many roles of women who took part. siti khodijah's role in islamic da'wah has supported the spread of islam, siti aisyah was intelligent in observing and practicing daily life with the prophet, as well as her courage in leading the jamal war. hafshah bint umar, she was a memorizer of the qur’an and good at reading and writing who contributed greatly in the compilation of the qur’an. in fact, it was only siti fatimah, the descendants of the prophet who were allowed by allah to have descendants. this indicates that the teachings of islam through the life journey of the prophet have respected women who were previously only male descendants who were recognized by lineage. in line with presidential instruction no. 9 of 2000 concerning gender mainstreaming in indonesia, has changed the mindset of the indonesian people about women themselves. there were many big changes after the issuance of this instruction, and even one year later indonesia was led by a woman, mrs. megawati soekarno putri. then, many career women have emerged who occupy strategic posts in this country. followed by many laws and regulations that provide space for existence and explore women's intelligence. the rules that protect women as victims are also getting stronger in changing the culture of society that has so far underestimated women. 34 lela ahmad, women and gender in islam, alih bahasa: wanita dan gender dalam islam (jakarta: lentera, 1992). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 27 references achidsti, ashilly, gender gus dur: tonggak kebijakan kesetaraan gender era presiden abdurrahman wahid (yogyakarta: gading publishing, 2021). ahmad, lela, women and gender in islam, alih bahasa: wanita dan gender dalam islam (jakarta: lentera, 1992). ali, zainuddin, metode penelitian hukum, 4th ed (jakarta: sunar grafika, 2013). arief, barda nawawi, bunga rampai kebijakan hukum 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silfiah and humiati 28 85 good faith in trips compulsory licensing of pharmaceutical patents: lessons from previous pandemic cases muhammad ardiansyah arifin faculty of law, universitas gadjah mada, indonesia, e-mail: muhammadardiansyah00@mail.ugm.ac.id submitted: june 25, 2021; reviewed: july 28, 2021; accepted: august 8, 2021 article info abstract keywords: compulsory licensing, covid-19, international, trips agreement. doi: 10.25041/lajil.v3i2.2349 the covid-19 pandemic impacts the world of patents as countries prepare their legal framework to ease the process of compulsory licensing. some like india and south africa even went further by proposing a suspension for patents needed to combat covid-19 which is still under discussion. it is a real possibility that a patented drug that is effective against covid-19 would potentially see compulsory licensing in many countries its patent holder is doing business. this article discusses why compulsory licensing is an essential issue by examining its legitimacy, previous cases of compulsory licensing, and the conduct of states in cases of compulsory licensing issuance, particularly in examples of thailand, brazil, and india. the article will examine ways of remedy against compulsory licensing, including a theoretical possibility for constitutional review of treaties. the remedies discussed shall include international and domestic remedies, both litigation and alternative measures. the research shall use qualitative research methods with the use of primary and secondary legal sources. the result of this article found that a combination of soft law power of the doha declaration and the invocation of subsequent compulsory licensing cases be the support pillars of compulsory licensing practice. however, the practice of compulsory licensing both by the patent holder and the state actors is still not performed entirely in good faith according to the vienna convention of the law of treaties (vclt) 1969 and the trips agreement. hence, such patent holders need to be familiar with both international and domestic remedies, especially the possibility for constitutional review of treaties remedies. volume 3 issue 2, july-december 2021: pp. 85-110. faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 86 a. introduction the need for greater access towards covid-19 medicines has propelled risks that countries adopt measures ranging from waiver of intellectual property enforcement as a measure to deal with covid-19 back in 15-16 october 2020,1 overriding the protection of intellectual property under article 73 of trips as part of security exception,2 revocation, and forfeiture under article 32 of trips,3 and finally-perhaps the most moderate approach aside from voluntary licensing-the compulsory licensing measures under article 31 jo article 31bis of trips. all actions above are part of the flexibilities under the trips agreement and potentially used by state parties to aid their effort in combating the spread of covid-19.4 for example, the saudi arabia-ipr panel and the russia-transit panel recognized that security exceptions of article 73 of the trips agreement could be made without analyzing fewer trade-restrictive measures or alternatives. the actions need to be plausibly related to its objectives. however, the implementation of article 73 would potentially trigger other obligation issues in the form of domestic laws and investment agreements (ias), which a country could possess.5 the trigger of other obligation issues might be why there is no use of article 73 yet in appropriating covid-19 medical materials.6 the revocation and forfeiture of covid-19 medicines under article 32 of the trips agreement is laxer by itself.7 it only requires that there needs to be a judicial review process mechanism before state parties conduct forfeiture or revocation. however, the lax requirement is balanced with the compulsory obligation to comply with the paris convention for the protection of industrial property (paris convention 1979) of article 1 to article 12 and 19. this is different from compulsory licensing for pharmaceutical products under article 31 jo article 31bis of trips. compulsory licensing is a license issued by a country's government to a third party to produce a patented product without its owner's permission.8 the general requirements are to conduct compulsory licensing include the supply of the domestic market. unless the country does not have sufficient manufacturing capabilities in the pharmaceutical sector, the use shall be for public and non-commercial purposes. the right holder must be informed promptly.9 compulsory licensing is often the preferred method by state parties in acquiring medical supplies. 1 hans morten haugen, “does trips (agreement on trade‐related aspects of intellectual property rights) prevent covid‐19 vaccines as a global public good?,” the journal of world intellectual property 24, no. 3–4 (2021): 1–26, https://doi.org/10.1111/jwip.12187. 2 frederick m. abbott, “the trips agreement article 73 security exceptions and the covid-19 pandemic,” ssrn electronic journal, no. 116 (2020): 1–22, https://doi.org/10.2139/ssrn.3682260. 3 carlos m. correa, “special section 301: us interference with the design and implementation of national patent laws,” research paper (geneva, 2020). 4 haugen, “does trips (agreement on trade‐related aspects of intellectual property rights) prevent covid‐ 19 vaccines as a global public good?”; abbott, “the trips agreement article 73 security exceptions and the covid-19 pandemic.” 5 abbott, “the trips agreement article 73 security exceptions and the covid-19 pandemic.” 6 katrina perehudoff, ellen thoen, and pascale boulet, “overriding drug and medical technology patents for pandemic recovery: a legitimate move for high-income countries, too,” bmj global health 6, no. 4 (2021): 1–4, https://doi.org/10.1136/bmjgh-2021-005518. 7 haugen, “does trips (agreement on trade‐related aspects of intellectual property rights) prevent covid‐ 19 vaccines as a global public good?” 8 eduardo urias and shyama v. ramani, “access to medicines after trips: is compulsory licensing an effective mechanism to lower drug prices? a review of the existing evidence,” journal of international business policy 3, no. 4 (2020): 367–84, https://doi.org/10.1057/s42214-020-00068-4. 9 haugen, “does trips (agreement on trade‐related aspects of intellectual property rights) prevent covid‐ 19 vaccines as a global public good?”; dawn dziuba, “trips article 31bis and h1n1 swine flu: any emergency or urgency exception to patent protection?,” indiana international & comparative law review 20, no. 2 (january 2010): 195–212, https://doi.org/10.18060/17626. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 87 this is proven by previous cases before covid-19 when countries implemented compulsory licensing in coping with previous pandemics. for example, in the hiv/aids pandemic, countries such as kenya, zimbabwe, benin, congo, ivory coast, mozambique, togo, zambia, central african republic, chad, gambia, guinea, lesotho, malawi, niger, rwanda, and sierra leone all have invoked compulsory licensing.10 furthermore, compulsory licensing does not always happen in a pandemic. an example is when the united states of america (usa) issued a compulsory license for sofosbuvir to increase access for the treatment of hepatitis. moreover, the british government has compulsory licenses towards lumacaftor/ivacaftor to increase access to cystic fibrosis treatment.11 for covid-19 related medicines, there are currently two confirmed executed compulsory licensing. russia has issued a compulsory license towards gilead, allowing local russian company pharmsynthez to produce covid-19 emergency drug remdesivir. israel also has issued a compulsory license for an experimental covid-19 drug called lopinavir/ritonavir (lpv/r).12 the lack of effective medicines caused the current low number of compulsory licensing because it is still developing. existing drugs are in the experimental stage or do not have a significant clinical outcome towards covid-19, making countries hesitant.13 it is a real possibility that when an effective drug against covid-19 exists, countries worldwide will use voluntary or compulsory licensing to get such medicines. for example, countries such as ecuador have approved a resolution calling for its health minister to issue a private license for all patents related to covid-19. in contrast, countries like brazil, canada, chile, and germany have amended their patent laws allowing for faster granting of compulsory licenses or laying the groundwork for easing covid-19 related licensing issuances.14 this trend is further exacerbated with a proposal from india and south africa, which calls for suspension of covid-19 related intellectual property protection to widen the access of covid-19 related materials for developing and least developing countries. currently, this proposal is still in discussion.15 therefore, all relevant parties need to learn about previous cases of compulsory licensing invocation and available remedies against compulsory licensing to avoid past mistakes and ensure fairness in its implementation. previous articles such as what has been discussed by tariq kameel, ramzi madi, and kawthar kayed only discuss legal approaches in arabian countries to identify when compulsory license could be issued and the right of a patent owner to fair compensation.16 hilary wong did discuss past experiences in the issuance of compulsory licensing of previous 10 marion motari et al., “the role of intellectual property rights on access to medicines in the who african region: 25 years after the trips agreement,” bmc public health 21, no. 1 (2021): 1–19, https://doi.org/10.1186/s12889-021-10374-y. 11 perehudoff, thoen, and boulet, “overriding drug and medical technology patents for pandemic recovery: a legitimate move for high-income countries, too.” 12 perehudoff, thoen, and boulet. 13 hilary wong, “the case for compulsory licensing during covid-19,” journal of global health 10, no. 1 (june 2020): 1–5, https://doi.org/10.7189/jogh.10.010358. 14 nataliia serohina et al., “application of compulsory licensing in the context of the covid-19 coronavirus pandemic,” systematic reviews in pharmacy 12, no. 1 (2021): 334–42, https://doi.org/10.31838/srp.2021.1.53; sakinah mohd shukri, johar mgm, and jacquline tham, “how e-business platform channels influence chinese auto-parts wholesale market?,” systematic reviews in pharmacy 11, no. 1 (2020): 718–24, https://www.sysrevpharm.org/articles/role-of-ebusiness-in-the-wholesale-market-of-china.pdf; wong, “the case for compulsory licensing during covid-19.” 15 ann danaiya usher, “south africa and india push for covid-19 patents ban,” the lancet 396, no. 10265 (december 2020): 1790–91, https://doi.org/10.1016/s0140-6736(20)32581-2; vijay kumar chattu, shalini pooransingh, and hamid allahverdipour, “global health diplomacy at the intersection of trade and health in the covid-19 era.,” health promotion perspectives 11, no. 1 (2021): 1–4, https://doi.org/10.34172/hpp.2021.01. 16 tariq kameel, ramzi madi, and kawthar kayed, “the compulsory licensing for exploiting patented covid19 pharmaceutical treatment: legal approaches of some arab countries,” biotechnology law report 40, no. 2 (2021): 104–16, https://doi.org/10.1089/blr.2021.29225.ka. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 88 pandemics. still, it did not discuss legal avenues that countries or patent owners could take in the case of being served with compulsory licensing.17 another article by hans morten haugen discussed how and when licensing could be legally invoked. it again did not discuss remedies that could be taken by patent owners facing compulsory licensing, and its main focus is the embedded progress of human rights in the intellectual property regime for the last twenty years.18 the closest example to this article is a work by alison slade where it discusses the good faith principle under trips agreement. still, it does not touch the matter of compulsory licensing.19 this research paper aims to discuss the urgency of the compulsory licensing issue and the remedies that concerned parties could pursue should they find themselves served with compulsory licensing. since there is a scholarly vacuum on how good faith operates in compulsory licensing and varying legal remedies that could be taken in the case of compulsory licensing? to answer such questions, this paper will elaborate on the development history of compulsory licensing under the trips agreement to find out its benefits and issues to discuss ways in which concerned parties could seek remedies both domestic and abroad against compulsory licensing. the method used to research this article shall be a normative qualitative research method using secondary sources obtained by literature research containing secondary sources, mainly primary legal sources and secondary legal sources. first, this article will discuss the required licensing method of the trips agreement. second, this article will discuss previous cases of compulsory licensing by citing examples of thailand, brazil, and india with the united states as the patent flag state. thailand, brazil, and india were chosen for this article because the three countries represent case examples of compulsory licensing, which the trips agreement served as a legal source. moreover, many materials about the three countries show the interplay between patent holder state and compulsory licensing state. the three countries also face problems from one patent holder state: the united states. because of its aggressive role in defending patents, the united states was chosen as a patent holder state example in this article. it is hoped that this research will bring further attention to compulsory licensing issues and their available legal remedies. hence, both the rights of people and the pharmaceutical actors are better protected. b. discussion 1. compulsory licensing method in trips agreement although having existed since 1623 from united kingdom (uk) practice,20 the compulsory licensing method first gains prominence as a punitive measure under the trading with the enemy act 1917. the united states government confiscated all german inventors and german-owned patents in the united states, where 4706 patents were made for compulsory licensing.21 nowadays, compulsory licensing is used to weaken the monopoly power of patents. 17 wong, “the case for compulsory licensing during covid-19.” 18 haugen, “does trips (agreement on trade‐related aspects of intellectual property rights) prevent covid‐ 19 vaccines as a global public good?” 19 alison slade, “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives,’” international and comparative law quarterly 63, no. 2 (april 2014): 353–83, https://doi.org/10.1017/s0020589314000098. 20 ebenezer durojaye, “compulsory licensing and access to medicines in post doha era: what hope for africa?,” netherlands international law review 55, no. 1 (may 2008): 33–71, https://doi.org/10.1017/s0165070x08000338. 21 joerg baten, nicola bianchi, and petra moser, “compulsory licensing and innovation – historical evidence from german patents after wwi,” journal of development economics 126 (2017): 231–42, https://doi.org/10.1016/j.jdeveco.2017.01.002. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 89 the ratio for today’s role of compulsory licensing is to weaken patents’ monopoly power by increasing access to medicines and essential innovations as compulsory licensing results in sharp price reduction of the licensed goods.22 compulsory licensing was included in article 5 of the paris convention 1979,23 before later complemented with article 31 of the trips agreement 1994, foreign patents could be issued with compulsory licenses in case of national emergencies.24 the doha declaration further eases the compulsory licensing requirements by giving countries freedom to determine the grounds on which compulsory licenses are granted which clarifies the objectives and principles in interpreting the trips agreement.25 the objectives and principles of the trips agreement are enshrined in article 7 and article 8. among the objectives enshrined in article 7 is the promotion of social and economic welfare. this means the enforcement of intellectual property rights is a reward for its holder and creators that contributes to society in socioeconomic welfare.26 before the doha declaration, there were two perspectives in interpreting the trips agreement objectives and purposes between south africa, which favors the developing country approach, and the united states, which favors the developed countries' approach. this difference was originated from south african legislation, which allows compulsory licensing for pharmaceutical products, much to the united states' disagreement.27 south africa argued that issuing compulsory licenses will cause prices to drop, increasing access to licensed medicines needed to handle the aids crisis back in 1997.28 while the united states argued that what is needed is a robust patent regime with a combination of social, economic, and health policies instead of compulsory licenses because such policies will encourage innovation and development of drugs.29 regardless, the united states and the developed countries have moved away from their previous position. this mainly started from a turning point in the negotiation process when it is known that the united states threatened bayer ag corporation during the anthrax30 scare to issue a compulsory license unless the corporation sold its ciprofloxacin license for a lower price.31 22 petra moser, “patents and innovation: evidence from economic history,” journal of economic perspectives 27, no. 1 (february 2013): 23–44, https://doi.org/10.1257/jep.27.1.23; sara m ford, “compulsory licensing provisions under the trips agreement: balancing pills and patents,” american university journal of international law & policy 15, no. 4 (2000): 941–74, https://digitalcommons.wcl.american.edu/auilr/vol15/iss4/5/. 23 margaret dowie-whybrow, “paris convention for the protection of industrial property,” in core statutes on intellectual property (london: macmillan education uk, 2013), 516–43, https://doi.org/10.1007/978-1-13735471-6_5. 24 antony taubman, hannu wager, and jayashree watal, eds., “agreement on trade-related aspects of intellectual property rights (trips agreement) (as amended on 23 january 2017),” in a handbook on the wto trips agreement (cambridge university press, 2020), 295–337, https://doi.org/10.1017/9781108883511.015. 25 james thuo gathi, “the legal status of the doha declaration on trips and public health under the vienna convention of the law of treaties,” harvard journal of law & technology 15, no. 2 (2002): 292–317, https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1419&context=facpubs; moser, “patents and innovation: evidence from economic history.” 26 thamara romero, “articles 7 and 8 as the basis for interpretation of the trips agreement” (geneva, 2020). 27 ford, “compulsory licensing provisions under the trips agreement: balancing pills and patents.” 28 ford. 29 gathi, “the legal status of the doha declaration on trips and public health under the vienna convention of the law of treaties.” 30 anthrax is caused by a spore-forming bacterium. it mainly affects animals. 31 divya murthy, “the future of compulsory licensing: deciphering the doha declaration on the trips agreement and public health,” american university international law review 17, no. 6 (2002): 1299–1346, https://digitalcommons.wcl.american.edu/auilr/vol17/iss6/4/. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 90 despite the consensus reached in the doha declaration, its legal status remains ambiguous;32 this is not categorized as a proper and official interpretation tool under article ix.2 of the marrakesh agreement establishing the wto.33 there are three possibilities regarding the legal status of the doha declaration: as a subsequent agreement under article 31.3 (a) of the vienna convention on law of treaties (vclt) 1969, as evidence of subsequent practice under the trips agreement, or as a legally non-binding statement of intent and commitment.34 however, recent publications agree that the doha declaration is a legally non-binding statement of intent or “soft law” based on its text and negotiating history.35 there are differences of opinion among scholars about the role of soft law, mainly centered on whether it could be classified as a law in the first place.36 positivist scholars such as jan klabbers strictly adhered to a view that “soft law” is not a law because the binding power of law cannot be uncertain,37 and malcolm n. shaw and dinah shelton further explain that instruments of “soft law” that have become legally binding are not soft law but rather international conventions or international customary law adopted from soft law.38 some scholars take an interactionist approach towards soft law. these scholars do not expressly state whether “soft law” could be classified as law or not. peter malanczuk claims that soft law is a crossroad between law and politics; a soft law with high legitimacy could structure international conduct even though the soft law was intended to be non-legally binding.39 this shows a mutual reinforcing and supplementing approach towards hard and soft law relations, which fuller supports.40 aside from the positivist and interactionist approach, recent reviews by constructivists tried to argue the status of soft law as law. the constructivist approach claims that earlier scholars are biased because of positivist domination in the legal school of thought and ignore formal and informal law. for the constructivist, the law is not a closed system, and therefore the quality of legal argument determines the truth of the legal proposition instead of the other way around.41 32 steve charnovitz, “the legal status of the doha declarations,” journal of international economic law 5, no. 1 (march 2002): 207–11, https://doi.org/10.1093/jiel/5.1.207. 33 putu ayu and sriasih wesna, “doha declaration sebagai perlindungan masyarakat atas akses obat esensial di negara berkembang pasca trips agreement,” jurnal warmadewa kertha wicaksana 14, no. 1 (2020): 56–62, https://doi.org/10.22225/kw.14.1.1585.56-62; eric m. solovy and pavan s. krishnamurthy, “trips agreement flexibilities and their limitations: a response to the un secretary-general’s high-level panel report on access to medicines,” george washington international law review 50, no. 1 (2017): 69–124, https://ssrn.com/abstract=2984951. 34 gathi, “the legal status of the doha declaration on trips and public health under the vienna convention of the law of treaties.” 35 sharifah sekalala and haleema masud, “soft law possibilities in global health law,” journal of law, medicine & ethics 49, no. 1 (april 2021): 152–55, https://doi.org/10.1017/jme.2021.20; solovy and krishnamurthy, “trips agreement flexibilities and their limitations: a response to the un secretary-general’s high-level panel report on access to medicines.” 36 vita cita emia tarigan and eka nam sihombing, “kebijakan pengendalian pencemaran di selat malaka yang bersumber dari kecelakaan kapal,” jurnal penelitian hukum de jure 19, no. 4 (december 2019): 479–502, https://doi.org/10.30641/dejure.2019.v19.479-502; anthony aust, handbook of international law, 2nd ed. (cambridge: cambridge university press, 2010). 37 tarigan and sihombing, “kebijakan pengendalian pencemaran di selat malaka yang bersumber dari kecelakaan kapal.” 38 malcolm n. shaw, international law, 6th ed. (cambridge: cambridge university press, 2008); david armstrong, routledge handbook of international law, ed. david armstrong et al., 1st ed. (new york: routledge, 2009). 39 peter malanczuk, akehurst´s modern introduction to international law, 7th ed. (new york: routledge, 2002). 40 bart van klink and oliver w. lembcke, “a fuller understanding of legal validity and soft law,” in legal validity and soft law (berlin: springer, 2018), 145–64, https://doi.org/10.1007/978-3-319-77522-7_7. 41 jaap hage, “what is legal validity? lessons from soft law,” in legal validity and soft law (berlin: cham : springer international, 2018), 19–45, https://doi.org/10.1007/978-3-319-77522-7_2. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 91 therefore, informal law such as soft law can support hard law and vice versa in establishing legal order because both are separate entities.42 regardless of the difference of positions about soft law power, all theories agree that soft law influences global legal order either as a trend followed by states or as a separate law by itself. this is why the doha declaration has the legitimacy to be followed by states and bring humanist influence towards intellectual property legal regimes, as proven by increasing call and progress towards greater access to medicines for the last twenty years. 43 the proof of this statement is the cooperation between who, wipo, and wto to handle public health issues in capacity-building activities and collaborate on matters relating to public health, intellectual property, and trade affairs.44 further progress in the wto also exists in amendments to the trips agreement, especially the creation of article 31bis.1, which allows granting compulsory licenses towards non-domestic entities to produce pharmaceutical products. article 31bis.1 is a boon to least developing countries (ldcs) which often do not have sufficient pharmaceutical infrastructure to produce locally effectively.45 2. benefits and issues of compulsory licensing method a. lessons from previous use of compulsory licensing method compulsory licensing in the pharmaceutical industry frequently carries enormous legitimacy as a result of the doha declaration. however, compulsory licensing has its benefits and consequences. the following paragraphs shall discuss compulsory licensing based on several previous cases after the doha declaration to determine the benefits gained and the consequences incurred. the researcher shall begin with the use of compulsory licensing in thailand, brazil, and india perspectives. thailand issued a compulsory license for anti-retroviral drugs (arvs) in 2007, including efavirenz by merck and lopinavir/ritonavir and kaletra by abbot. this action was furthered in august 2010 where thailand extended its compulsory licensing over merck and abbot arvs until their patent expiration.46 thailand's motivation to issue compulsory licenses stems from the high percentage of hiv cases in its country. as a comparison, thailand in 2009 has around 580.000 cases of hiv out of its 66 million population while the united states has around 410.000-880.000 range of hiv cases out of 306 million population, this means hiv infects 1,3% of thailand's population. in contrast, the united states percentage is at 0,6%.47 thailand seeks to reduce drug prices to ensure greater accessibility for its people to measure public health security. however, thailand still has a problem keeping its prices down despite compulsory licensing measures and international aid drugs.48 this raises the specter of thailand's government's motive being profit rather than public health security. 42 van klink and lembcke, “a fuller understanding of legal validity and soft law.” 43 world trade organization, promoting access to medical technologies and innovation, 2nd edition, 2nd ed. (geneva: wto, 2020), https://doi.org/10.30875/fa323700-en; haugen, “does trips (agreement on trade‐ related aspects of intellectual property rights) prevent covid‐19 vaccines as a global public good?” 44 world trade organization, promoting access to medical technologies and innovation, 2nd edition. 45 urias and ramani, “access to medicines after trips: is compulsory licensing an effective mechanism to lower drug prices? a review of the existing evidence.” 46 donald harris, “trips after fifteen years: success or failure, as measured by compulsory licensing,” journal of intellectual property law 18, no. 2 (2011): 1–35, https://digitalcommons.law.uga.edu/jipl/vol18/iss2/3. 47 sheikh shahnawaz, “the optimal timing of compulsory licensing: a story of thailand’s winter of discontent,” global economy journal 12, no. 4 (november 2012): 1–17, https://doi.org/10.1515/1524-5861.1903. 48 kristina m. lybecker and elisabeth fowler, “compulsory licensing in canada and thailand: comparing regimes to ensure legitimate use of the wto rules,” journal of law, medicine & ethics 37, no. 2 (january 2009): 222–39, https://doi.org/10.1111/j.1748-720x.2009.00367.x. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 92 government pharmaceutical organization (gpo), as thailand state-owned enterprise which manufactured pharmaceutical products, has a history of mark up as high as 1000% among its 60% pharmaceutical products that have been sold above-market prices in 2002. furthermore, the profits of gpo for 2010 were planned to double that of 2005 profit of 10 billion baths.49 these realities question the goals of the thailand government of keeping down prices by utilizing compulsory licensing, even though at that time thailand’s public health expenditures constitute 10% of its total government budget and that the funds can be allocated for public health purposes.50 arguments that the inability to further keep down prices was due to supply issue was negated by thailand government policy of not allowing private manufactures procurement contract, citing compulsory licensing could assure universal coverage.51 especially since thailand conducts its compulsory licensing based on the grounds of public non-commercial use.52 this is further exacerbated with disputed allegations that thailand does not even seriously negotiate with pharmaceutical manufacturers before issuing compulsory licensing-allegations. this strengthens the evidence that they use compulsory licensing based on the grounds of doubtful public non-commercial in practice.53 overall, there are outcomes about thailand's hiv/aids compulsory licensing. first, although compulsory licensing improved access by lowering prices, thailand's program brings more benefits to domestic industrial goals than public health benefits. second, the compulsory licensing implementation brings suspicion towards thailand’s government motive because of allegations that cost-saving from compulsory licensing was geared to profit instead of patients. third, thailand's action has gathered international controversy both from private corporations and the government.54 such outcomes resulted in the united states placing thailand in united states trade representatives (ustr) section 301 report and threatening to remove thailand from generalized system of preferences (gsp) privileges for its lack of transparency, enforcement, and protection. at the same time, abbott responds by withholding its introduction of new medicines in thailand.55 unfortunately, such an outcome did not solely affect thailand but the pro-compulsory licensing world as a whole because retaliation from pharmaceutical companies and the united states have influenced developing countries to restrain in taking advantage of compulsory licensing at that time.56 49 lybecker and fowler. 50 jerome h. reichman, “comment: compulsory licensing of patented pharmaceutical inventions: evaluating the options.,” the journal of law, medicine & ethics : a journal of the american society of law, medicine & ethics 37, no. 2 (january 2009): 247–63, https://doi.org/10.1111/j.1748-720x.2009.00369.x. 51 lybecker and fowler, “compulsory licensing in canada and thailand: comparing regimes to ensure legitimate use of the wto rules.” 52 jamie feldman, “compulsory licenses : the dangers behind the current practice,” journal of international business and law 8, no. 1 (2009): 137–67, https://scholarlycommons.law.hofstra.edu/jibl/vol8/iss1/9/. 53 cynthia ho, “unveiling competing patent perspectives,” houston law review 46, no. 4 (2009): 1047–1114, https://houstonlawreview.org/article/4270-unveiling-competing-patent-perspectives; lybecker and fowler, “compulsory licensing in canada and thailand: comparing regimes to ensure legitimate use of the wto rules”; shahnawaz, “the optimal timing of compulsory licensing: a story of thailand’s winter of discontent.” 54 lybecker and fowler, “compulsory licensing in canada and thailand: comparing regimes to ensure legitimate use of the wto rules.” 55 sebastian haunss and kenneth shadlen, “the politics of patents: conditions of implementation of public health policy in thailand,” in politics of intellectual property: contestation over the ownership, use, and control of knowledge and information (cheltenham: edward elgar publishing, 2009), 1–249, https://doi.org/10.4337/9781849802062; shahnawaz, “the optimal timing of compulsory licensing: a story of thailand’s winter of discontent”; harris, “trips after fifteen years: success or failure, as measured by compulsory licensing”; reichman, “comment: compulsory licensing of patented pharmaceutical inventions: evaluating the options.” 56 harris, “trips after fifteen years: success or failure, as measured by compulsory licensing”; wong, “the case for compulsory licensing during covid-19.” lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 93 unlike thailand, the brazilian practice of compulsory licensing is more dynamic. brazil issued a compulsory license on efavirenz on may 4, 2007, an hiv/aids drug owned by merck, after previously threatening merck with compulsory license under public interest (public noncommercial use) if merck is still persistent in not further reducing its bargaining price.57 the justification for such action is to save 30 million dollars annually from its hiv/aids program, and that previous negotiation with merck does not reach an agreement.58 merck is displeased with brazil’s actions because it will further set a precedent to encourage the overuse of compulsory licensing methods even for countries that can pay. brazil action will reduce foreign investment for the pharmaceutical sector, which will impact the introduction of new drugs to brazil.59 brazil's tendency to persuade pharmaceutical companies to bargain its products with the threat of compulsory license was also shown when brazil negotiated with gilead for tenofovir. because of its previous reputation, gilead concedes to brazil by cutting the tenofovir price in half. brazil's success can be attributed to its strong economic power as the world's 12th largest economy. this status allows brazil to leverage its pharmaceutical sector in pharmaceutical price negotiations and other trade negotiations. all whilst still being able to cross-retaliate against foreign pressure such as from the united states.60 furthermore, aside from economic power, brazil employs a mix of soft politics consisting of human rights concerns, the progress of developing countries, international solidarity, and it is another high political-strategic interest.61 unfortunately, brazil felt the consequences of their method in invoking compulsory licensing when there are damages to patent enforcement and the economy in brazil. these damages changed the policy of brazil henceforth to the point that brazil did not exercise nor discuss taking compulsory licensing measures in pharmaceutical products.62 brazil's sincerity in its policy change is proven so far as brazil has yet to be a plan to conduct compulsory licensing nor leverage compulsory licensing to pharmaceutical products.63 last but not least is india which has successfully issued one compulsory license to date.64 india has issued a compulsory license to sorafenib tosylate (nexavar), a cancer drug for liver and kidney owned by bayer, on march 12, 2012.65 this compulsory licensing was issued after the indian controller general of patents (controller) approved the license to natco pharma 57 caio rodrigues da silva and leonor galvão de botton, “compulsory pharmaceutical patent licensing in brazil: the controversy of public interest,” pharmaceutical patent analyst 2, no. 6 (november 2013): 1–3, https://doi.org/10.4155/ppa.13.63; feldman, “compulsory licenses : the dangers behind the current practice.” 58 vera zolotaryova, “are we there yet ? taking " trips " to brazil and expanding access to hiv / aids medication,” brooklyn journal of international law 33, no. 3 (2008): 1099–1126, https://brooklynworks.brooklaw.edu/bjil/vol33/iss3/10. 59 feldman, “compulsory licenses : the dangers behind the current practice.” 60 harris, “trips after fifteen years: success or failure, as measured by compulsory licensing.” 61 matthew flynn, “brazilian pharmaceutical diplomacy: social democratic principles versus soft power interests,” international journal of health services 43, no. 1 (january 2013): 67–89, https://doi.org/10.2190/hs.43.1.f. 62 rodrigues da silva and galvão de botton, “compulsory pharmaceutical patent licensing in brazil: the controversy of public interest.” 63 medicines law & policy, “the trips flexibilities database,” medicines law & policy, 2018, http://tripsflexibilities.medicineslawandpolicy.org/. 64 reuters staff, “india defends right to issue drug ‘compulsory licenses,’” reuters, 2016, https://www.reuters.com/article/us-india-patents-usa-iduskcn0wp0t4; medicines law & policy, “the trips flexibilities database.” 65 satish saroha, deepak kaushik, and arun nanda, “compulsory licensing of drug products in developing countries,” journal of generic medicines: the business journal for the generic medicines sector 12, no. 3–4 (september 2015): 89–94, https://doi.org/10.1177/1741134313503827; cinthia leite frizzera borges bognar, brittany l. bychkovsky, and gilberto de lima lopes, “compulsory licenses for cancer drugs: does circumventing patent rights improve access to oncology medications?,” journal of global oncology 2, no. 5 (2016): 292–301, https://doi.org/10.1200/jgo.2016.005363. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 94 (natco) on march 9, 2012.66 the rationale for nexavar compulsory licensing is to increase access to nexavar drugs by lowering its price from 5000 dollars a month to 170 dollars a month, a 97% decrease in cost.67 the controller approves the compulsory license because it was previously only accessible to fewer than 200 indians in 2011, affordable to only 2% of all patients with kidney and liver cancers.68 this is contrary to section 84 of indian patent law which allows compulsory licensing for patents that are not available and affordable to the public at a reasonable price.69 a decisive factor favoring natco is bayer's defense arguing an alternative to nexavar already existed in india made by cipla at a far cheaper price, a company which bayer is already in the process of litigating due to allegations of nexavar patent infringement in mumbai.70 the compulsory licensing decision then was challenged by bayer to the indian patent appellate board (ipab). still, it was rejected on march 4, 2013. the ipab upheld the controller's decision but increased the royalty payable to bayer from 6% to 7% so that bayer will derive a good advantage from its patent according to section 90 (2) of indian patent law.71 unsurprisingly, the united states reacted somewhat strongly to the decision. according to access campaign-a part of medicins sans frontières (msf), the united states commerce secretary, john bryson has raised concerns about the dilution of the indian patent regime. then on june 27, 2012, there were talks in the united states house of representatives that the indian compulsory licensing decision was a trips agreement violation. on february 21, 2013, this got worse when the global intellectual property center (gipc) ranked india the lowest of eleven countries in ip rights strength. this is followed by further escalation of statements in the next month against indian patent law as testimonies and lobbying efforts further the united states frustration.72 based on thailand, brazil, and india cases, there are benefits and issues gained from the issuance of compulsory licensing. on the one hand, all three countries have a varying degree of success in improving access and affordability of medicines due to compulsory licensing. on the other hand, compulsory licensing could be alleged as a mask to fulfill industrial objectives rather than humanitarian ones, as happened in the thailand case. in thailand, it is a geopolitical tool of intimidation under brazil's case or invites the unwanted retaliation from the united states as what happened to all three countries. there is no doubt that compulsory licensing issuance would invite pressure that can damage the state economy. however, as in the case of india, countries with robust patent regimes and economies will be able to maximize the benefits of compulsory licensing while defending against the consequences. b. treaty performance regarding compulsory licensing invocation under trips agreement after the doha declaration, what constitutes a good-faith interpretation for trips agreement performance are interpretations following objectives and principles in articles 7 and 8, respectively, with particular emphasis on article 7 as an expression of good faith 66 mansi sood, “natco pharma ltd. v. bayer corporation and the compulsory licensing regime in india,” nujs law review 6, no. 1 (2013): 99–119, http://nujslawreview.org/2016/12/02/natco-pharma-ltd-v-bayer-corporationand-the-compulsory-licensing-regime-in-india/. 67 bela gandhi, “india’s compulsory license model: increased pharmaceutical access and innovation coexist,” byu prelaw review 33, no. 5 (2019): 33–51, https://scholarsarchive.byu.edu/byuplr/vol33/iss1/5/. 68 saroha, kaushik, and nanda, “compulsory licensing of drug products in developing countries.” 69 gandhi, “india’s compulsory license model: increased pharmaceutical access and innovation coexist.” 70 saroha, kaushik, and nanda, “compulsory licensing of drug products in developing countries.” 71 sood, “natco pharma ltd. v. bayer corporation and the compulsory licensing regime in india.” 72 médecins sans frontières, “a timeline of us attacks on india’s patent law and generic competition” (geneva, 2015), https://msfaccess.org/sites/default/files/2018-10/ip_timeline_us pressure on india_sep 2014_0.pdf. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 95 principle.73 the good faith principle also has been expanded in cases following the trips agreement. first, the russia-transit case states that gatt 1994 and, by extension, the trips agreement clarifies good faith as taking measures that do not circumvent treaty obligations.74 this is further clarified in the saudi arabia-ipr case, where saudi arabia did an example of circumvention. by denying intellectual property criminal proceedings as a remedy, saudi arabia violates article 61 of the trips agreement.75 second, to be interpreted in good faith, and interpretation must be effective in the sense that the interpretation must not result in whole clauses or treaty paragraphs to redundancy. this is founded under article 31 of vclt 1969, which interpretation must be based upon treaty text.76 this is further explained in united states-section 211 case where the appellate report states relevant provisions must be included in the interpretation to be practical.77 ignoring or failing to interpret trips provisions adequately indicates that the interpretation was not made in good faith.78 an example of this exists in the canada-pharmaceutical case, where the panel recognizes that article 30 of trips is limited by article 7 and 8.1 of trips. this is one of the earliest recognitions of article 7 and 8 trips agreement scope before the doha declaration.79 third, the abuse of correct doctrine within the good faith principle. this means the interpretation of the trips agreement must not be something that degrades treaty obligations and devalue other members' treaty rights. this is confirmed in the us-shrimp case, where abuse or misuse of rights will negate the treaty rights of other members.80 hence, according to the us-shrimp case lead, article 7 objectives are subsequently used as a balancing tool between trips rights and obligations.81 fourth, legitimate expectations. in the india-patents case, there is a legitimate expectation of protection over security and predictability in the multilateral trading system. however, india fails to meet this legitimate expectation due to its mailbox system inadequacy in ensuring equal competition between foreign and domestic businesses.82 from this decision, the impact upon trips agreement is the recognition of legitimate expectation for market access and reciprocal trade benefits in performing good faith.83 from these cases, there are four elements of good faith in the trips agreement based on cases. (1) measures or interpretation must not circumvent treaty obligations; (2) measures or interpretation must be effective in the sense of not ignoring or underrepresenting other relevant clauses; (3) interpretation or measures must not be abusive, in the sense of degrading other 73 slade, “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives.’” 74 stephanie hartmann, “russia – measures concerning traffic in transit (wto),” international legal materials 58, no. 5 (october 2019): 899–1027, https://doi.org/10.1017/ilm.2019.40. 75 wto panel, saudi arabia – measures concerning the protection of intellectual property rights (2018). 76 wto appellate body, japan taxes on alcoholic beverages (1996). 77 robert howse and damien j. neven, “united states – section 211 omnibus appropriations act of 1998 (wt/ds176): report of the appellate body,” in dispute settlement reports 2002, ed. world trade organization (cambridge: cambridge university press, 2004), 589–682, https://doi.org/10.1017/9781108379052.001. 78 slade, “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives.’” 79 world trade organization, “canada patent protection of pharmaceutical products (wt/ds114) report of the panel,” in dispute settlement reports 2000 (cambridge: cambridge university press, 2002), 2289–2582, https://doi.org/10.1017/9781108378840.002. 80 world trade organization appellate body, “united states import prohibition of certain shrimp and shrimp products (wt/ds58): report of the appellate body,” in dispute settlement reports 1998, ed. world trade organization (cambridge: cambridge university press, 2001), 2755–2820, https://doi.org/10.1017/9781108378703.001. 81 slade, “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives.’” 82 world trade organization, “india patent protection for pharmaceutical and agricultural chemical products (wt/ds79/r): report of the panel,” in dispute settlement reports 1998 (cambridge: cambridge university press, 2001), 2661–2752, https://doi.org/10.1017/9781108378697.002. 83 slade, “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives.’” good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 96 members treaty rights; (4) interpretations and measures must ensure equal competition between foreign and domestic businesses. the benefits and issues about compulsory licensing gave rise to various legal arguments about the scope of compulsory licensing under article 31. as the trips provision under article 31 does not explicitly protect cases of retaliatory action against less powerful states to deter them from using compulsory licensing, compulsory licensing is used as a tool of intimidation against pharmaceutical actors for states to gain a better price. therefore, this section will determine whether the actions of thailand, brazil, india, and the united states conform to the principle of pacta sunt servanda and good faith regarding conformity with the trips agreement. article 26 of the vclt incorporates the old international customary law of pacta sunt servanda (rooted in private law relations) to treaty law. pacta sunt servanda itself means that agreements must be kept. the full excerpt of article 26 is “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. from this excerpt could be inferred that five elements are arising from the article: (1) every treaty; (2) in force; (3) legally binding force; (4) duty to perform; and (5) compliance.84 for these paragraphs, the researcher shall review the duty to perform against previous case examples starting from thailand. for the duty to good faith performance, this is not so clear because of profit motivation by gpo and that thailand does not allow procurement contracts for the private pharmaceutical sector by citing that greater access would be better achieved in government hands. the monopoly of production by gpo and profit motivation could be argued respectively that gpo sole production would negate distribution hurdles. these distributions were prevalent in thailand's private pharmaceutical sector at that time, and that profits gained by gpo could be used as funds for public health programs in thailand, and therefore still comply with public non-commercial purposes. for the good faith in interpretation, this is clear. thailand has implemented the provisions of the trips agreement correctly under article 31 (b) under the public non-commercial clause by informing the patent owners as both abbot and merck do not dispute this. so far, there is no complaint about adequate remuneration by both patent holders; thus, this further strengthens the duty to perform in thailand's case. there is no circumvention of treaty obligations by thailand. for the object and purposes of the treaty, a review can be derived from article 7 “objectives” and article 8 “principles” of the trips agreement. the doha declaration provision article 5 (a) requires for “…each provision of the trips agreement shall be read in light of the object and purpose of the agreement as expressed, in particular, its objectives and principles”. it has been a scholarly consensus to refer towards article 7 and article 8 of the trips agreement to find its object and purpose, owing to the doha declaration influence that sets public health as a legitimate interest recognized and accommodated by the trips agreement.85 hence, there is no circumvention or ignoring of relevant clauses in this case. article 7 of the trips agreement requires a middle ground between producers and consumers in optimizing innovation, promoting social and economic development whilst cushioning detrimental consequences of intellectual property protection.86 article 8.1 of the trips agreement further allows member states to adopt measures to protect public health and the public interest by formulating and amending their laws and regulations without prejudice to 84 oliver dörr and kirsten schmalenbach, “article 26 pacta sunt servanda,” in vienna convention on the law of treaties: a commentary, ed. oliver dörr and kirsten schmalenbach (berlin, heidelberg: springer berlin heidelberg, 2012), 1–1423, https://doi.org/10.1007/978-3-642-19291-3. 85 alice maxwell, “plainly justifiable? the world trade organization’s ruling on the validity of australia’s ‘plain packaging’ under article 20 of the trips agreement,” asian journal of wto & international health law & policy 14, no. 1 (2019): 115–45, https://doi.org/10.2139/ssrn.3363052. 86 alison slade, “the objectives and principles of the wto trips agreement: a detailed anatomy,” osgoode hall law journal 53, no. 3 (2016): 1–59, https://ssrn.com/abstract=2781664. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 97 other articles in the trips agreement. the excerpt balances this provision in article 8.2, which prohibits the abuse of rights holders' rights and practices that restrain trade.87 thailand's actions fulfillment of article 7 is disputed here. it can be argued that thailand could do more to lessen compulsory licensing on the patent holders. during the compulsory licensing case, thailand was governed by a military junta88. that government raised its defense budget to 30 billion dollars. therefore, lacked funds to cope with the hiv crisis without compulsory licensing, even as its status as the 34th biggest economy at that time. furthermore, the gpo was historically corrupt in its practice. its facilities did not meet who standards, thus will not be as effective as if the original patent holders produce it. nevertheless, it is essential to keep in mind as a mitigating fact that the pharmaceutical sector was less than 0.5% in the global market at that time, and thus its effects should not be decisive to the patent holders. 89 it can be argued that thailand’s exercise of compulsory licensing is abusive to the patent holder’s rights. for article 8.1, thailand did have laws and regulations about compulsory licensing in section 51 of the patent act of be 2522, which allows compulsory licensing in “...service for public consumption or which is of vital importance to the defense of the country, or for the preservation or realization of natural resources or the environment, or to prevent or relieve a severe shortage of food, drugs, or other consumption items, or for any other public service…”.90 while not abusing rights and conduct practices that could restrain trade in article 8.2. thailand did not such thing because of its relatively high percentage of hiv patients. thailand uses a long-established law to justify its compulsory licensing, which nobody complains about that restricts trade. this means thailand has ensured that it satisfied legitimate expectations. brazil's case is different from thailand, where it has been established that brazil uses compulsory licensing threat persuade patent holders in price negotiation. however, it is important to note that during the period from 2002 to 2011, there are around 530.000 people with hiv in brazil, in which 253.706 deaths were reported, and there are 20.2 cases of hiv/aids per 100.000 people, all of which signifies the existence of hiv/aids pandemic in brazil. furthermore, as leverage against united states actions and using the us-brazil dispute over cotton subsidies, brazil enacted provisional measure 482/2010 on february 10, 2010, which consists of measures against intellectual property rights as retaliation under wto dsu. 91 brazil measure here is similar to what russia has done in the russia-transit case years later. both states here made sure that none of their measures circumvented treaty obligations.92 about the duty to good faith in treaty performance, there is quite a question whether pressures of compulsory licensing can be used to intimidate patent holders into lowering their negotiating prices. this bears in mind that brazil is the 12th biggest economy at compulsory licensing and thus has more leverage and buying power than thailand. nevertheless, brazil negotiated with patent holders despite article 31 (b) of the trips agreement not requiring it for public non-commercial use. furthermore, unlike thailand's case, the negotiation between brazil and the patent holders began in earnest as both have evidence in negotiating prices. 93 87 taubman, wager, and watal, “agreement on trade-related aspects of intellectual property rights (trips agreement) (as amended on 23 january 2017).” 88 a military junta is a government led by a committee of military leaders. 89 ho, “unveiling competing patent perspectives.” 90 sakda thanitcul and matthew lim braslow, “compulsory licensing of chronic disease pharmaceuticals in thailand,” thai journal of pharmaceutical sciences 37, no. 2 (2013): 61–83, https://www.researchgate.net/publication/289551723_compulsory_licensing_of_chronic_disease_pharmaceutica ls_in_thailand. 91 viviane yumy mitsuuchi kunisawa, “analyzing the brazil case,” in the trips agreement implementation in brazil, ed. christoph ann et al., 1st ed. (baden-baden: nomos verlagsgesellschaft mbh, 2015), 151–78. 92 hartmann, “russia – measures concerning traffic in transit (wto).” 93 wong, “the case for compulsory licensing during covid-19.” good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 98 this can be seen as brazil's act of good faith in domestic performance and can be extended to good faith in interpretation because both sides have not claimed that either side interprets the trips agreement unreasonably. here, brazil took a step forward by complying with article 31 (b) of trips as a precaution, showing its considerations for relevant clauses. for the duty not to defeat the object and purpose of the treaty, it can be argued that brazil should not abuse the threat of compulsory licensing in its negotiation, even though such a technique did produce a result. however, will brazil get the same bargained price and deal decisively with the hiv pandemic if brazil takes the softer approach? perhaps this might be possible with brazil’s economic power and that it did not suffer from the same domestic condition as thailand. this could potentially be a reason for the abuse of rights conducted by brazil in using the threat of compulsory licensing in negotiation. however, there is no decisive complaint on the capability of brazil to balance patent holder and consumer rights to medicine. brazil did suffer the consequences of its policy in terms of economy and patent enforcement and has refrained from using a compulsory license as a pressure tool in further negotiations. furthermore, brazil did have compulsory licensing law in its law no. 9.279 of may 14, 1996-amended in 2001 (law on industrial property), which serves as a basis for compulsory licensing for pharmaceutical products. therefore brazil's fulfillment of the trips agreement object and purposes is evidence of its compliance to duty not to defeat the object and purpose of the treaty.94 since patent holders have no complaint about this law, brazil has satisfied legitimate expectations in ensuring equal competition. for the case of india, there is no doubt about india's compliance to both good faith in performance and good faith in interpretation because of the rigidity of indian patent courts and the implementation of a strong intellectual property regime in india's domestic patent law. there is no doubt on the object and purpose of the treaty since it has been established that previous access to cancer drugs in india was so low that only 2% of indians can access it. furthermore, compulsory licensing is not so easily implemented in india, as it takes years before the compulsory licensing decision is final (from 2011 to 2013 in bayer's case). bayer did get more royalty at 7% as a result of the ipab decision. india gives the patent holder its right to more significant royalty and equal competition between foreign and domestic businesses. both domestic and foreign businesses have the same recourse for compulsory licensing remedies. all of this also satisfies good faith in trips provisions due to india’s adherence to not circumvent treaty obligations, not ignoring or underrepresenting other relevant clauses, not being abusive, in the sense of degrading other members’ treaty rights as shown by india. now on to the actions of the united states, it can be argued that the united states' pressure tactics against countries that implement compulsory licensing be contrary to the duty to perform the trips agreement. on duty to perform in good faith, the united states conducts pressure measures to thailand, brazil, and india. its aggressive reprisal measures are contrary to article 23 of annex 2, where the united states should instead file a claim against the parties, which is viewed as wrongful in the use of compulsory licensing.95 for the good faith in interpretation, the united states did not claim absurd nor unreasonable interpretation, and therefore this will not be discussed. for the objective and purpose of the trips agreement, it can be seen from the united states actions that it did not act entirely in the spirit of article 7 of the trips agreement due to its retaliatory actions. these actions hamper the capability and legitimacy of foreign governments in formulating their pharmaceutical policies that balance the interest between patent holders and consumers. however, it can be argued that the united states is using its power to protect the patent holders from being abused under article 8.2 of the trips 94 kunisawa, “analyzing the brazil case.” 95 reichman, “comment: compulsory licensing of patented pharmaceutical inventions: evaluating the options.” lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 99 agreement, even though their measures are left much to be desired. based on cases and their applicability to vclt 1969 regarding good faith in treaty performance, there are occasions that actions of thailand, brazil, and the united states are not necessarily fully compliant. this means similar cases could be expected to happen when an effective patented covid-19 drug enters the pharmaceutical market.96 3. possible international and local remedies against compulsory licensing a. international remedies from previous cases, there have been examples in which patent holders fought against compulsory licensing. the researcher will briefly explain the options available for patent holders in accessing international remedies starting from litigation before delving into other methods of gaining international remedies. on accessing remedies by litigation measures aside from dsu, the multinational patent holders mostly prefer international investment arbitration under bilateral investment treaties. this use of international investment arbitration uses a loophole in which the dsu did have exclusive jurisdiction in dispute between states. still, it said nothing about a state dispute with a non-state party. the international investment arbitration also could have a chilling effect on the compulsory licensing granted by government authorities. this method is so effective that a simple threat of using the investor-state dispute settlement (isds) mechanism with significant compensation could refrain countries from enacting compulsory licensing measures.97 unfortunately, no compulsory licensing cases are concluded within the international forum or at least those known to the public. the closest case is the brazil — patent protection in 2001 and argentina — certain measures on the protection of patents and test data 2002, which end in a mutually agreed solution instead of proceedings.98 the case is different for the isds mechanism. some investment agreements (ias) such as india-singapore fta and australia-uruguay bit exclude the issuance of compulsory licensing from the scope of expropriation.99 investors could still sue the states against compulsory licensing by using the fair and equitable treatment (fet) clause and the national treatment clause. this could be done by alleging that the exercise of compulsory licensing was founded on unstable regulation made due to trends in covid19,100 or that the exercise of compulsory licensing is discriminately targeted to a foreign company.101 alternatively, investors could use the isds mechanism to force states into 96 wong, “the case for compulsory licensing during covid-19.” 97 katarzyna kaszubska, “compulsory licensing under india’s new model bilateral investment treaty,” review of market integration 9, no. 3 (december 2017): 139–54, https://doi.org/10.1177/0974929217744466. 98 emmanuel kolawole oke, “the incorporation of a right to health perspective into brazil’s patent law reform process,” in law and policy in latin america, ed. pedro fortes et al. (london: palgrave macmillan uk, 2017), 311–26, https://doi.org/10.1057/978-1-137-56694-2; letícia frazão leme, “flexibilities under article 39.3 of the trips agreement: protection of pharmaceutical test data and the case of brazil,” in the wto dispute settlement mechanism, ed. alberto do amaral júnior, luciana maria de oliveira sá pires, and cristiane lucena carneiro (cham: springer international publishing, 2019), 339–55, https://doi.org/10.1007/978-3-030-032630_22. 99 prabhash ranjan, “compulsory licences and isds in covid-19 times: relevance of the new indian investment treaty practice,” journal of intellectual property law & practice 16, no. 7 (2021): 748–59, https://doi.org/10.1093/jiplp/jpab084. 100 federico ortino, “the obligation of regulatory stability in the fair and equitable treatment standard: how far have we come?,” journal of international economic law 21, no. 4 (december 2018): 845–65, https://doi.org/10.1093/jiel/jgy039. 101 yamashita tomoko, “procedural and normative competition between the wto’s dispute settlement and the investor-state arbitration: focusing on the national,” public policy review 16, no. 5 (2020): 1–23, https://www.mof.go.jp/english/pri/publication/pp_review/ppr16_05_09.pdf. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 100 lobbying against compulsory licensing. this approach, unfortunately, is riddled with ethical issues.102 non-litigation measures, on the other hand, can be done by relying upon the patent holder's flag state mechanism, such as the ustr section 301 report from the united states. the ustr section 301 report annually examines the united states trade partners' intellectual property regime and classifies problematic countries into three watch lists.103 countries that are classified as “priority foreign country” will trigger sanction proceedings initiated by the ustr,104 these sanctions happen even when such proceedings are legally questionable under article 23.2 of annex 2.105 however, this method is only effective for countries with less economic strength and could only offer cold comfort because there is no guarantee of reparations. another nonlitigation measure is to settle after the initiation of wto dsu proceedings. from examples of brazil — patent protection in 2001 and argentina — certain measures on the protection of patents and test data 2002, wto dsu litigation could be used to force the parties to consider settlement agreement instead of continuing the proceedings. b. domestic remedies this section will elaborate on the domestic mechanism taken by claiming parties against trips compulsory licensing invocation. aside from generic methods, the researcher will explain about constitutional review mechanism as a theoretical measure to claim remedies against compulsory licensing, mainly by ex-post review, and how this could be an option for claimants. one of the first steps in domestic measures against compulsory licensing is to prevent compulsory licensing from happening. this can be seen in negotiation between patent owners and governments or generic manufacturers such as natco in india’s case, even though negotiation is not compulsory for public non-commercial purposes and national emergencies under the trips agreement article 31 (b).106 depending on the relative economic and political power of the state, negotiations can result in either triumphant voluntary licensing in place of compulsory licensing,107 compulsory licensing results in harmful consequences for states such as in thailand and brazil cases, and successful compulsory licensing such as in india. when negotiations did not work, patent holders could take measures against the compulsory licensing decision by filing a suit in state courts. results may vary based on each state's patent regime. thailand’s patent law (patent act be 2522, sections 50 and 51) did not allow for patent holders to contest government use of compulsory licensing for the public noncommercial use. a court remedy by the board of patents and further appeal by the international 102 public eye, “compulsory licensing in colombia: leaked documents show aggressive lobbying by novartis,” public eye, 2017, https://www.publiceye.ch/en/media-corner/press-releases/detail/compulsorylicensing-in-colombia-leaked-documents-show-aggressive-lobbying-by-novartis. 103 aswathy asok, “compulsory licensing for public health and usa’s special 301 pressure: an indian experience,” journal of intellectual property rights 24, no. 5–6 (2019): 125–31, http://nopr.niscair.res.in/handle/123456789/54321. 104 suma athreye, lucia piscitello, and kenneth c. shadlen, “twenty-five years since trips: patent policy and international business,” journal of international business policy 3, no. 4 (2020): 315–28, https://doi.org/10.1057/s42214-020-00079-1. 105 reichman, “comment: compulsory licensing of patented pharmaceutical inventions: evaluating the options.”; asok, “compulsory licensing for public health and usa’s special 301 pressure: an indian experience.” 106 taubman, wager, and watal, “agreement on trade-related aspects of intellectual property rights (trips agreement) (as amended on 23 january 2017).” 107 bryony simmons, graham s. cooke, and marisa miraldo, “effect of voluntary licences for hepatitis c medicines on access to treatment: a difference-in-differences analysis,” the lancet global health 7, no. 9 (2019): 1189–96, https://doi.org/10.1016/s2214-109x(19)30266-9. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 101 trade court could only be filed to contest compulsory licensing conditions and matters about patent royalty.108 brazilian regulates compulsory licensing in law no. 9.279 of may 14, 1996-amended in 2001 (law on industrial property) in which compulsory licensing is regulated under section iii article 68-74.109 brazilian law on industrial property allows the patent holder to contest compulsory licensing filing by the generic company within sixty days after an application has been published by the national institute of industrial property (inpi).110 the patent holders could contest the inpi decision should a compulsory license be granted under article 73 (7), but such appeal does not suspend the compulsory licensing decision.111 appeals to the compulsory licensing decision can be pursued in brazil federal trial court and could be appealed until it reached federal supreme court.112 india is perhaps one of the most robust compulsory licensing regimes, as shown in the bayer case. india has its structure for patent-related disputes like thailand in the controller for the first instance and ipab for appeals. however, unlike its thailand counterparts, india allows patent holders to challenge the compulsory licensing decision. furthermore, in its decision, ipab has shown to be fairer for patent holders, as shown when ipab grants additional royalty to give a reasonable advantage to bayer in its compulsory licensing.113 aside from patent or regular court litigation, a theoretical possibility for compulsory licensing can happen in the constitutional court. ex-post treaty review is a constitutional review that examines the constitutionality of treaty provision to state constitution after the treaty has been concluded.114 patent holders could submit a constitutional petition that a particular interpretation of the trips agreement which mandates the issuance of the compulsory license, is contrary to the state's constitutional provision. indonesia has conducted a similar review about asean charter constitutionality under constitutional court decision no. 33/puu-ix/2011. the asean charter is transformed to national law under law no. 38/2008 on the ratification of the asean charter; hence, the basis on which the constitutional court can justify its review of asean charter content. further reasoning by the constitutional court in its authority to review the asean charter is that indonesia's sovereignty allows the charter to be made in the first place. indonesia has the complete freedom to bind and release itself from treaties, and that indonesia has the right to review its participation in international treaties.115 the outcome of the constitutional court decision no. 33/puu-ix/2011 is the conformity of the asean charter under the indonesian constitution, had the constitutional court decided otherwise, two outcomes could be pursued. first, weak-form review, which is legally non 108 jakkrit kuanpoth, “compulsory licences: law and practice in thailand,” in compulsory licensing practical experiences and ways forward, ed. reto m. hilty and kung-chung liu (berlin: springer berlin heidelberg, 2015), 61–77, https://doi.org/10.1007/978-3-642-54704-1_4. 109 milton lucídio leão barcellos, “compulsory license in brazil: competition tool or just a threat?,” revista de propriedade intelectual direito constitucional e contemporâneo 10, no. 3 (october 2016): 141–52, https://doi.org/10.16928/2316-8080.v10n3p.141-152. 110 rodrigues da silva and galvão de botton, “compulsory pharmaceutical patent licensing in brazil: the controversy of public interest.” 111 licks attorneys, “brazilian patent statute and selected patent prosecution rules” (2016), http://static.lickslegal.com/pdf/licks attorneys brazil selected patent prosecution rules.pdf?x54306. 112 kunisawa, “analyzing the brazil case.” 113 sood, “natco pharma ltd. v. bayer corporation and the compulsory licensing regime in india.” 114 mario mendez, “constitutional review of treaties: lessons for comparative constitutional design and practice,” international journal of constitutional law 15, no. 1 (january 2017): 84–109, https://doi.org/10.1093/icon/mox004. 115 januari sihotang, “peran mahkamah konstitusi sebagai lembaga penguji undang-undang dalam masyarakat ekonomi asean,” dialogia iuridica: jurnal hukum bisnis dan investasi 7, no. 1 (2017): 37, https://doi.org/10.28932/di.v7i1.707. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 102 binding, means the constitutional court will state that the asean charter is unconstitutional. therefore the current executive government must solve the problem, but without legal consequences for the central government. second, a strong-form review means that the constitutional court could legally compel the executive government to either renegotiate the treaty to conform to the constitutional court decision or withdraw entirely lawfully.116 however, in case of nonconformity, indonesia does not have a law that expressly granted its constitutional court to legally compel the executive branch to renegotiate or withdraw from a treaty. therefore a weak-form review outcome would be most likely to happen. indonesia is not the only country that could legally put its treaties to the constitutional court. countries such as germany, hungary, and italy could legally conduct a constitutional review of their treaties.117 this is an unexplored opportunity for patent holders to try constitutional review against compulsory licensing issuance. however, it is important to consider that depending on the state. this approach does not have a compensation guarantee if the compulsory licensing decision does not have a suspensive effect. therefore, the constitutional review can potentially affect post-review attempts of compulsory licensing and not the decision submitted for constitutional review. c. conclusion compulsory licensing will be a significant issue during this covid-19 pandemic due to humanitarian reasons, and pharmaceutical patents that are proven as an effective drug against covid-19 will likely face compulsory licensing. however, previous cases of compulsory licensing have shown that not all states practice the trips agreement dutifully and under vclt 1969, that invoking compulsory licensing would most likely invite retaliation from the patent holder’s flag state even though the trips agreement has seen more humanitarian interpretation since the doha declaration. from the discussion, there are four fundamental requirements to perform the trips agreement in good faith. (1) measures or interpretation must not circumvent treaty obligations; (2) measures or interpretation must be effective in the sense of not ignoring or underrepresenting other relevant clauses; (3) interpretation or measures must not be abusive, in the sense of degrading other members treaty rights; (4) interpretations and measures must ensure equal competition between foreign and domestic businesses. therefore, access to remedies against compulsory licensing is paramount for patent holders. legal remedies can be gained in international and domestic means. internationally, the dsu mechanism seems to be the preferred method to resolve compulsory licensing disputes. however, the plaintiff state often uses such measures to pressure a negotiated settlement instead of resolution by dsu proceedings. hence indicators to determine good faith in trips agreement performance and interpretation about compulsory licensing are derived from loosely relevant decisions. the same strategy was also used in isds proceedings. alternatively, plaintiffs could negotiate with states that invoke compulsory licensing and take advantage of the ustr section 301 mechanism in the case of the usa being the plaintiff’s flag state . a drawback of international litigation is the cost factor. therefore, for matters such as compulsory licensing, parties prefer negotiation. in domestic scope, plaintiffs usually claim remedies by filing a lawsuit. this works well for countries that have robust patent regimes, both for states and the plaintiff. before litigation, the parties conduct negotiations. the purpose of negotiation is to ensure a possibility of voluntary licensing by the patent holder. a voluntary licensing mechanism places more autonomy on patent holders instead of price-determination by the state in compulsory licensing. 116 mendez, “constitutional review of treaties: lessons for comparative constitutional design and practice.” 117 noor sidharta et al., “judicial preview on the bill on international treaty ratificat ion,” constitutional review 3, no. 1 (august 2017): 24–42, https://doi.org/10.31078/consrev312. lampung journal of international law (lajil) p-issn: 2656-6532 volume 3 issue 2, july-december 2021 e-issn: 2723-2603 103 aside from regular negotiations and litigations, it is unfortunate that constitutional review of treaties possibility is still unexplored in this matter. it is hoped that this constitutional review of treaties would soon debut when covid-19 effective drug has been released. until such an occasion has happened, this discussion would remain a theoretical possibility. a more present matter would be the need for strengthening the compulsory licensing regime for states. a constitutional review of treaties regarding compulsory licensing decisions would develop the intersection between constitutional law and international law in aspects of intellectual property. as this research has shown in the case of india, a robust patent regime-particularly in compulsory licensing would increase the odds of resilience against retaliation from the patent holder's state. india managed to resist the united states’ probing over their patent regime through their robust legal regime of patents aside from their economic might, hence even though bayer’s case’s decision still favors natco. there is no mass retaliation like what happened with brazil and thailand. a robust patent regime guarantees legal certainty, strengthening foreign investors’ confidence in doing business despite a case against their interest. this is an important lesson to be replicated by other countries, including indonesia. the researcher shall conclude that this research is still limited as this article only examines the united states as the patent holder’s flag state. further research focusing on the patent holder with the equivalent power would be needed to understand compulsory licensing dynamics further. references abbott, frederick m. “the trips agreement article 73 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platform channels influence chinese auto-parts wholesale market?” systematic reviews in pharmacy 11, good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 108 no. 1 (2020): 718–24. https://www.sysrevpharm.org/articles/role-of-ebusiness-in-thewholesale-market-of-china.pdf. sidharta, noor, sudarsono sudarsono, i nyoman nurjaya, and bambang sugiri. “judicial preview on the bill on international treaty ratification.” constitutional review 3, no. 1 (august 2017): 24–42. https://doi.org/10.31078/consrev312. sihotang, januari. “peran mahkamah konstitusi sebagai lembaga penguji undang-undang dalam masyarakat ekonomi asean.” dialogia iuridica: jurnal hukum bisnis dan investasi 7, no. 1 (2017): 37. https://doi.org/10.28932/di.v7i1.707. simmons, bryony, graham s. cooke, and marisa miraldo. “effect of voluntary licences for hepatitis c medicines on access to treatment: a difference-in-differences analysis.” the lancet global health 7, no. 9 (2019): 1189–96. https://doi.org/10.1016/s2214109x(19)30266-9. slade, alison. “good faith and the trips agreement: putting flesh on the bones of the trips ‘objectives.’” international and comparative law quarterly 63, no. 2 (april 2014): 353– 83. https://doi.org/10.1017/s0020589314000098. ———. “the objectives and principles of the wto trips agreement: a detailed anatomy.” osgoode hall law journal 53, no. 3 (2016): 1–59. https://ssrn.com/abstract=2781664. solovy, eric m., and pavan s. krishnamurthy. “trips agreement flexibilities and their limitations: a response to the un secretary-general’s high-level panel report on access to medicines.” george washington international law review 50, no. 1 (2017): 69–124. https://ssrn.com/abstract=2984951. sood, mansi. “natco pharma ltd. v. bayer corporation and the compulsory licensing regime in india.” nujs law review 6, no. 1 (2013): 99–119. http://nujslawreview.org/2016/12/02/natco-pharma-ltd-v-bayer-corporation-and-thecompulsory-licensing-regime-in-india/. tarigan, vita cita emia, and eka nam sihombing. “kebijakan pengendalian pencemaran di selat malaka yang bersumber dari kecelakaan kapal.” jurnal penelitian hukum de jure 19, no. 4 (december 2019): 479–502. https://doi.org/10.30641/dejure.2019.v19.479-502. taubman, antony, hannu wager, and jayashree watal, eds. “agreement on trade-related aspects of intellectual property rights (trips agreement) (as amended on 23 january 2017).” in a handbook on the wto trips agreement, 295–337. cambridge university press, 2020. https://doi.org/10.1017/9781108883511.015. thanitcul, sakda, and matthew lim braslow. “compulsory licensing of chronic disease pharmaceuticals in thailand.” thai journal of pharmaceutical sciences 37, no. 2 (2013): 61–83. https://www.researchgate.net/publication/289551723_compulsory_licensing_of_chronic _disease_pharmaceuticals_in_thailand. tomoko, yamashita. “procedural and normative competition between the wto’s dispute settlement and the investor-state arbitration: focusing 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access to hiv / aids medication.” brooklyn journal of international law 33, no. 3 (2008): 1099– 1126. https://brooklynworks.brooklaw.edu/bjil/vol33/iss3/10. good faith in trips compulsory licensing of pharmaceutical patents: … muhammad ardiansyah a. 110 27 sovereignty and legal personality: a lesson from european union's evolution to supranationalism muhammad bahrul ulum universitas jember, indonesia email: muhd.bahrul@unej.ac.id submitted: feb 3, 2022; reviewed: apr 21, 2022; accepted: jun 30, 2022 article info abstract keywords: state sovereignty, legal personality, european union, westphalian model. doi: 10.25041/lajil.v4i1.2517 sovereignty remains a crucial debate in international law. simultaneously, regionalism offers a new pathway for which sovereignty is often contested whether it surrenders due to economic interests. this paper revisits the notion of state sovereignty in the light of economic globalization and enquires about legal personality in international relations. overall, this paper emphasizes revisiting the concept of sovereignty and legal personality in this 21st century, which has evolved amidst the more globalized world due to international economic relations. the present study was based on historical and analytical methods as doctrinal research. the historical approach was adopted to study international treaties and agreements to know the historical background and evolution of international economic law institutions. then, it exemplified the european union's evolution that transcends the state boundaries, following the debate on the relevance of the state sovereignty after the brexit case under the discussion of the waning of the state sovereignty. finally, this discussion ended with the international legal personality owned by regional bodies, taking the eu and asean as the comparison. at the outset, the eu was projected as the new governance structure that gradually disrupted the state concept under the westphalian peace 1648 due to its member states' desire to form the state-level structure. the european union redefines the new model of sovereignty against the westphalian model, which is incomparable to the asean intergovernmental model and other regional bodies regarding sovereignty concerns and legal personality. volume 4 issue 1, january-june 2022: pp. 27-40. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil sovereignty and legal personality … muhammad bahrul ulum 28 a. introduction in the aftermath of world war ii, state sovereignty has become the pivotal element. also, in the current more globalized world, state sovereignty remains essential by considering the recent issues about the rise of china1 and the united kingdom (uk) withdrawal from the european union (eu).2 these two examples represent state sovereignty as a critical issue among the global facts of the increasingly boundless international arena. nevertheless, state sovereignty often links to the more considerable debate on the domestic power to manage and legislate under the right to self-determination. while new underdeveloped and developing countries arise as decolonization, the current debate does not merely center on the sentiment of colonialism and imperialism. the problematic intersection of globalism and the emerging hypernationalism has entered the contentious landscape of national interests among industrial countries. it also puts a crucial debate within developed countries as which it refers to the westphalian model. accordingly, in this globalized world, the state cannot survive alone. each state needs cooperation in compliance with other states' interests on peacekeeping and economic reasons. it affirms that states cannot avoid cooperation and friendly relations in establishing global peace. the establishment of the united nations contemplates this concerning issue. a globalized world encourages each to promote reciprocal relations, especially after world war ii, primarily concerning economic matters. although sovereignty has grown the discussion to the extent of its implication to domestic affairs,3 it has never been understood as an absolute.45 for instance, international security will be materialized if each state involves cooperation through treaties or other particular consensual agreements. the cross-border relationship also needs cooperation among states in terms of economic activity. it is commonly agreed that the inception of the world trade organization (wto) is an example of reflecting the importance of economic relations among states. through the wto, each state has a trade institution to develop negotiation forums and settle trade disputes. the establishment of the european communities also invokes economic interdependence among states in europe. the european states' desire to establish a single community generated the european union, which applies a single commercial policy within member states. this emergence brings a new trend in domestic and international law. domestic policies have been gradually shifted to supranational power. the eu, which comes as the regulator of the common policy among states, raises sovereignty among member states. it is one of the phenomena the globalizing world inevitably redefines state sovereignty. this paper aimed to revisit the notion of state sovereignty in the light of economic globalization. it also deals with the advent of the eu as a powerful institution in regional coverage, which dramatically enters into a global system. this paper aims to provide a literature review by revisiting the concept of sovereignty and legal personality in international relations dealing with the european union in exercising its powers. since its beginning, the european union has been projected as the new form of governance structure. it disrupts the state concept under the 1 while chinese leaders under the chinese communist party (ccp) embrace globalization, china has attempted to control and regulate its socio-economic and political effects domestically with the aim to counter the socalled "negative" effects through the twin vehicles of nationalism and sovereignty. andrew coleman and jackson nyamuya maogoto, “‘westphalian’ meets ‘eastphalian’ sovereignty: china in a globalized world,” asian journal of international law 3, no. 2 (july 2013): 240, https://doi.org/10.1017/s2044251313000179. 2 michael gordon, “referendums in the uk constitution: authority, sovereignty and democracy after brexit,” european constitutional law review 16, no. 2 (june 2020): 213, https://doi.org/10.1017/s1574019620000152. 3 there is no clear definition of sovereignty. it is the power of an individual state to act independently. karen e. bravo, “challenges to caribbean economic sovereignty in a globalizing world,” mich. st. u. coll. l. int’l l. rev. 20 (2011): 34. 4 vaughan lowe, “sovereignty and international economic law,” in redefining sovereignty in international economic law (oxford; portland: hart, 2008), 77. 5 matthias herdegen, principles of international economic law (oup oxford, 2013), 65. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 29 westphalian peace 1648 due to its member states' desire to form the state-level structure. even if the european union ceased to exist to have the constitution due to the rejection under the sovereignty concerns from some member states, it remains to become a new governance model. it lasted with the debate over to what extent it reconfigures the sovereignty. the present study was carried out based on historical and analytical methods as doctrinal research. the historical approach was adopted to study international treaties and international agreements to know the historical background and evolution of international economic law institutions concerned. the work mainly used library and doctrinal with historical and analytical methodology traits. the primary sources of information were collected from the declaration, charter, treaties, international agreements, acts, books, case-law, and journals on the topic research. the historical study was proposed to adopt a comparison concept or model in the past and the present conditions and to suggest some important measures on the problem. this paper consists of three parts of the discussion. the first part overviews state sovereignty through the lens of history. the second part analyzes sovereignty in international relations, encompassing state sovereignty in the globalized world. it also highlights the discussion about the waning of sovereignty. the third part discusses the concept and the spectrum of international legal personality. b. discussion 1. revisiting state sovereignty the state sovereignty represents the basic constitutional doctrine, which governs a community, mainly encompasses a state that has a uniform legal personality. sovereign states mean that they are equal. their sovereignty becomes significant in other states and organizations of states defined by law.6 the term sovereignty describes legal competence that refers to a particular function by providing a rationale for its exercise.7 however, this paper will argue that it has a lengthy and troubled history. in other words, it is susceptible to multiple meanings and justifications. in this case, sovereignty is not to be equated with any specific substantive r ight. it is a precondition related to a specific jurisdiction, including a legislative body over national territory called sovereignty or sovereign rights. the correlative duty of respect for territorial sovereignty and territorial jurisdiction privileges refers to sovereign state immunity. therefore, sovereignty characterizes powers and privileges resting on customary law independent of another state's particular consent.8 the state sovereignty in international relations has the primary role in meeting other states' constitutional independence. james's words deal with national independence by referring to the constitution as the supreme source, not part of a broader constitutional arrangement.9 it asserts that states should freely regulate domestic affairs without other states or parties' pressure or interest. crawford introduces sovereignty as a legal, absolute, and unitary condition. legal means that the state is not subordinate to another sovereign.10 absolute sovereignty is either present or absent, and a sovereign state is a supreme authority within the national jurisdiction.11 it applies to all states, whether the unitary or federal constitutional structure, due to a sole authority in external relations remaining in the central government.12 otherwise, it would be more than one 6 james crawford, brownlie’s principles of public international law (oup oxford, 2012), 447. 7 ian brownlie, principles of public international law (clarendon press, 1973). 8 crawford, brownlie’s principles of public international law, 448. 9 robert h. jackson, quasi-states: sovereignty, international relations and the third world, cambridge studies in international relations 12 (cambridge: cambridge university press, 1999), 32. 10 ibid. 11 ibid. 12 ibid. sovereignty and legal personality … muhammad bahrul ulum 30 state, each with the unitary attribute.13 in federal states, the external affair is the responsibility of the national government.14 in this regard, the federal government has conferred the power on behalf of the government into international relations to satisfy the local and federal governments' interests.15 therefore, although the federal system adopts a system that gives more power to the local or regional government, it reserves external relations retained by the federal government. historically, sovereignty was the substantial monopoly of power for the highest authority. it evolved as the nation-state began with the 1648 treaty of westphalia. this notion developed into the sovereign's absolute right and what we call the westphalian sovereignty.16 as the concept to be prominent globally, laying the foundation of state theories, the us government official has defined the concept and its problem: [h]istorically, sovereignty has been associated with four main characteristics. first, a sovereign state enjoys supreme political authority and monopoly over the legitimate use of force within its territory. second, it is capable of regulating movements across its borders. third, it can make its foreign policy choices freely. fourth, it is recognized by other governments as an independent entity entitled to freedom from external intervention. these components of sovereignty were never absolute, but together they offered a predictable foundation for world order. what significant today is that each of these components---internal authority, border control, policy autonomy, and non-intervention---is being challenged in unprecedented ways. 17 some discussions about sovereignty's role focus on the principle of subsidiarity. 18 they stand for the proposition that governmental functions should be allocated among hierarchical government institutions. some believe that a higher government level requires special justification to achieve the desired goals.19 after world war ii, the evolution of sovereignty continued, contrasted to the integration of europe. it refers to establishing the european communities and the notion of sovereignty transformed with the customs union and market integration. it also evolves sovereignty dealing with human rights, which solicits justice to the international community in the globalizing world. the shifting concept of human rights from constitutional to international law also brings consequences to the enforcement and fulfillment of human rights through international law mechanisms. it also shifts human rights enforcement on the municipal and supranational levels at the eu by establishing the european court of justice. the phenomenon categorizes one of the critical challenges of sovereignty, primarily when it deals with the state's powers and territories. in trade policy, the sovereignty concept may result in scrutiny. the wto fits as an example. its membership is not exclusively sovereign entities. instead, it also includes separate customs territory possessing full autonomy in its external commercial relations like hong kong special administrative region.20 the claim by political sovereignty is different from democratic constitutional law as the legal basis of constitutional sovereignty and democratic and individual sovereignty. adhere to this view, the increasing economic, political, legal, and other limitations of political sovereignty justify the current globalization pathway. it includes the re-allocation of government powers to democratic people, indigenous people, international organizations, and individual human beings as legal subjects of inalienable rights. this dynamic 13 ibid. 14 ibid. 15 ibid. 16 john h. jackson, “sovereignty: outdated concept or new approaches,” in redefining sovereignty in international economic law (oxford; portland: hart, 2008), 8. 17 ibid. 18 european union, “the lisbon treaty: the principle of subsidiarity, the european summaries of eu legislation,” accessed april 15, 2015, http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0017_en.htm. 19 jackson, “sovereignty,” 9. 20 ibid., 10. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 31 transformation of international relations and international law entails a tension between un member states' sovereign equality as one of the un charter's constitutional principles (article 2).21 a) territorial sovereignty and non-intervention territorial sovereignty becomes the boundaries of the sovereignty of any state or state. it possesses its own (trust territory) nullius and res communis. a res nullius consists of an area legally susceptible to acquisition by states but not placed under territorial sovereignty.22 a res communis, comprising the high seas (which for present purposes include exclusive economic zone) and outer space, cannot be placed under sovereignty.23 with the government and the population within its boundaries, state sovereignty constitutes its physical and social base. the state's legal competence and the rules for their protection depend on and assume the existence of this stable, physically identified (and typically legally delimited) base. 24 sovereignty and sovereign equality require that each state can freely determine its domestic affairs without intervention from the outside. the principle of non-intervention is universally recognized as one of the cornerstones of international law. the international court of justice (icj) refers to the principle of non-intervention as the freedom of choices in the absence of external coercion. the principle forbids all states or groups of states to interfere directly or indirectly with other states' internal or external affairs. accordingly, a prohibited intervention must be one bearing on matters in which each state is permitted to decide freely by the principle of state sovereignty. the principle's discussion closely deals with the choice of a political, economic, social, and cultural system and foreign policy formulation. therefore, the intervention is wrongful when using coercion methods with such choices, remaining free. the coercion is particularly apparent in an intervention that uses force support for subversive or terrorist armed activities without another state.25 economic pressure as such will, in principle, not be classified as an intervention. the intervention measure usually requires a noticeable physical element. however, it has become controversial whether economic pressure can be so compelling as physical coercion to come within reach of intervention. the charter of economic rights and duties of states of 1974 prohibits using such economic measures, aiming at the subjection of one state to another in exercising sovereign rights.26 the principle of non-intervention was often mobilized against the condition for credits and other financial benefits by the world bank and other institutional lenders. payments may be tied to specific structural reforms and other conditions without a legal claim to unconditional financial assistance. at least, as long as they do not affect the core of self-determination.27 b) sovereign immunity of state the root of state immunity from jurisdiction and enforcement measures of other states comes from sovereign equality of states, known as par in parem non habet imperium.28 the principle asserts that each sovereign power cannot exercise jurisdiction over another. also, one country's courts cannot hear cases brought against the government of another country. thus, courts 21 ernst-ulrich petersmann, “state sovereignty, popular sovereignty and individual sovereignty: from constitutional nationalism to mutilevel constitutionalism in international economic law?,” in redefining sovereignty in international economic law (oxford; portland: hart, 2008), 28. 22 crawford, brownlie’s principles of public international law, 203. 23 ibid. 24 ibid., 206. 25 herdegen, principles of international economic law, 68. 26 ibid. 27 ibid., 68–69. 28 ibid., 69. sovereignty and legal personality … muhammad bahrul ulum 32 cannot involve themselves in the internal affairs of a foreign country.29 consequently, state immunity rules govern judicial and administrative proceedings and enforce judgments or arbitral awards in other states. states may renounce their claim to immunity either before a dispute arises or after the start of judicial proceedings. the waivers of immunity in favor of creditors are often attached to the emission of state bonds.30 the classic customary law is known with the doctrine of absolute immunity as it still prevails. it is substantially concerned that states could claim immunity for all their activities with a few exceptions. however, modern international law follows a more functional paradigm and merely recognizes the restricted model of a relative immunity. this immunity only covers sovereign acts (acta iure imperii) and does not extend to non-commercial activities (acta iure gestionis).31 when engaged in business transactions like a private person, states are subjected to foreign courts' jurisdiction like other actors. several international agreements and municipal laws have adopted the restrictive concept of immunity. it underlies the european convention on state immunity of 1972, the united nations convention on jurisdictional immunities of states and their property of 2004, the us foreign immunities act 1976, and the british immunity act 1978.32 international organizations may also invoke immunity under certain circumstances. as a rule, the agreement between the organization and the host state (where the organization has its seat) or the founding treaty will define the extent of immunity. the scope of immunity in customary law, which is relevant vis-a-vis non-member states, is highly disputed. a generous view will grant immunity to all acts covered by its purposes set out in the founding treaty. as a somewhat questionable consequence, the distinction between sovereign and commercial acts would become irrelevant. however, it is hard to understand why an international organization should enjoy broader immunities than its founding states. therefore, international organizations' immunity under customary law should follow similar states' immunity and exclude commercial activities.33 c) sovereignty and international organizations the institutional aspects of states result in an actual qualification of sovereign equality. in an organization subject to most weighted voting, organizations may be allowed to make decisions and even make binding rules without all member states' express consent. however, each member consented to the institutional aspects before joining the organization. thus, formally, the principle that obligations can only arise from states' consent and the principle of sovereign equality is satisfied.34 on the other hand, international organizations can evolve and assume roles very different from those initially contemplated. in the un's case, the organizations have interpreted the charter under the principles of effectiveness and implied powers at the expense, it may seem, of article 2 (1) and (7). in certain expenses, the court held that in the absence of any particular 29 richard schaffer, filiberto agusti, and beverley earle, international business law: a conceptual approach (new delhi: cengage learning india, 2009), 78. 30 herdegen, principles of international economic law, 69. 31 the concepts of jure imperii and jure gestionis are two things different. first deals with the state's action to enter into international agreements with other states or international organizations. however, the second deals with the entity which may enter into a private contract with domestic law's private entity. in the context of intergovernmentalism, it describes two instances: the eu, which has jure imperii. the second is asean, which has jure gestionis so that asean is treated as a private entity. hikmahanto juwana, “asean’s legal personality,” 2010, http://www.thejakartapost.com/news/2010/08/26/asean%e2%80%99s-legalpersonality.html. 32 herdegen, principles of international economic law, 69. 33 ibid., 72. 34 crawford, brownlie’s principles of public international law, 451–52. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 33 procedure to determine the un's institutions' acts' validity, each of them must determine its jurisdiction. some 40 years later, this position arguably enabled the security council to pass several resolutions using its chapter vii powers. these resolutions require states to enact particular domestic laws, supplanting the general assembly's recommendatory role, treatymaking process, and consent principle. the security council has always had the power to bind un members to the point of overriding other treaty obligations. however, legislative resolutions require members to respond to a general phenomenon rather than a specific situation involving a particular country or region at odds with the original conception of the security council as a force for the maintenance of international peace, not the alteration of world order.35 while an organization substantially encroaches on members' domestic jurisdiction, the structure may approximate a federation. given the modern relationship between states and international organizations, such a position seems inherently unlikely. in any event, the consentbased conception of this relationship precludes the argument that state sovereignty faces a threat from some form of overarching world government.36 2. sovereignty in international economic relations as we have faced in the 21st century, states have built alliances to materialize cooperation and friendly relations and deepen market integration in the current globalization era. though some decades after the final days of world war ii, every state has immensely built and reconstructed its domestic problems. the war results had deteriorated the prosperity of almost every state. every state thought that a world alliance and cooperation were excellent solutions to maintain peace and avoid war. the un's establishment is one of the instances why the alliance to build cooperation matters. the establishment of the imf, the ibrd, and the gatt/wto asserts to catalyze every state's reconfiguration. it desires to enter into international economic relations states are categorized as underdeveloped countries, developing countries, or even developed countries. in terms of economic relations, it imposes reconfiguration of the state's sovereignty in economic sectors by establishing modern international economic law. the fundamental role of this modern international law deals with reflections of the reality of human, economic, social, political, and environmental relationships across the international community; enhancement of the overall capacity of states and the international community to manage global threats, such as climate change, protectionism, and violations of human rights. this role is set against the historical foundation of international economic law as it is developing.37 as discussed earlier, sovereignty has different meanings, dimensions, and attributes. its correct understanding depends on the context used. thus, sovereignty is inherently unstable and constant in its core criteria subject to contestation and change. consequently, no single or indeed authoritative definition is given to the idea. sovereignty has been described variously---as an essentially contested concept, referring to a question to allocating power, typically through the government's decision-making power. at its core, sovereignty focuses on "the monopoly power."38 a) economic sovereignty in a globalizing world economic sovereignty deals with the state's economic powers in international economic relations. the state sovereignty connotes juridical independence from other participants' authority in international economic relations as constrained and augmented by the equality between states. article 2 (1) of the un charter explicitly affirms states' sovereign equality. 35 ibid. 36 ibid. 37 asif hasan qureshi and andreas r. ziegler, international economic law (sweet & maxwell, 2011), 47. 38 ibid., 48. sovereignty and legal personality … muhammad bahrul ulum 34 similarly, the principle of equality and independence has been revealed in various un instruments in the economic and judicial decisions.39 in this sense, there are two domains of economic sovereignty, inter alia, internal and external domains. in general terms, the internal domain has been aptly described as the power of a state to freely and autonomously organize itself and exercise a monopoly of legit imate power within its territory. an essential aspect of this sovereignty substantially deals with the right to development, a recognized international law principle. there has been much discourse between states and academic commentary regarding a state's sovereignty over its natural resource. however, the state's permanent sovereignty over its national resources can no longer be considered isolation. international environmental law and human rights development have gradually eroded the permanent sovereignty principle's exclusivity. in particular, when it deals with basic human needs. this inclusivity has found succor in the principle of sustainable development.40 the state's sovereignty in terms of its ability to determine its economic system is considerably inalienable. however, it is, to be sure, de facto subjected to impact to the globalized economy. further, given developments in the international economic order, there is now a question of the extent to which this inalienable domain at the level of general international economic law is intact. it has been suggested, for example, that there is now, in fact, a comparative advantage model of international economic law wherein the state has withered away. indeed, some of the practices of the bretton woods inst itutions would tend to suggest such development. however, whether they lead to the development of customary international economic law norms remains to be seen. in the first place, these multilateral agreements still do not enjoy full universal membership of the international community, exemplified as conventional international law practice. secondly, both the imf and the wto tend to focus mainly on external economic relations on the whole. the imf case has both a past and ongoing record of memberships of states with non-market orientated systems. to be sure, the imf articles of agreement do not stipulate a particular economic system as a condition of membership. finally, critical components of state authority still elude multilateral control, such as the power and manner of state taxation.41 b) sovereignty concerns of regional organizations the sovereignty concerns of regional organizations can be exemplified by the association of southeast asian nations (asean) and the european union (eu). these two entities are both regional organizations that apply the economic community, albeit they have different sovereignty implications. asean is an intergovernmental organization within southeast asia established in bangkok on august 8, 1967, with five original indonesia, malaysia, philippines, singapore, and thailand. asean members have indicated the fast-growing regionalism by including brunei darussalam, cambodia, lao pdr, myanmar, and viet nam. while the eu is a pivotal regional organization playing a significant role in members' domestic matters, asean members retain their powers over asean due to sovereignty. after world war ii, asean is considered one of the most successful regional organizations. it was an organization to fortify member states from the spreading of communism to shift into regional cooperation. it is believed that asean progressively transforms a region after the eu by following the eu model. asean has had tremendous efforts after more than four decades, in which the evolution delivered asean to conceive blueprint. in its progressive trajectory, asean started by priority as a regional organization into a stable, prosperous, and highly competitive region, at equitable economic development and reduced poverty and socio-economic disparities (asean 39 ibid., 50. 40 ibid., 61. 41 ibid., 62. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 35 vision 2020). it was followed by the asean summit in bali in 2003 (bali concord ii), which declared the asean economic community (aec) as the goal of regional economic integration by 2020. in 2007, the 12th asean summit affirmed their strong commitment to accelerate in establishing the asean community by 2015. it became the progressive step that transformed asean into a region with free movement of goods, services, investment, skilled labor, and more unrestricted capital flow.42 the cooperation strategy of asean consists of two key elements. first, asean seeks to deepen and accord among its members by developing an asean community with three inter-related components, inter alia, economic, political-security, and socio-cultural. second, asean strives to consolidate its position at the center of cooperation in east asia overall. the ambitious step taken by asean through the creation of aec affirms that asean desires to transform its region. aec is designed with a single market and production base to enter into a worldwide competition with free movement of goods, services, investment, skilled labor, and freer capital flow. the single market and production base also include two essential components: the priority integration sectors and food, agriculture, and forestry. the creation of aec is evidence of the new step taken by asean in promoting cooperation from merely a regional cooperation to a broader range of regional cooperation with the economic community within the region. the history of the european common market arguably reflects asean. an economic community is an essential part of achieving more significant benefits in international economic relations. in europe, the economic community began with the free flow of goods (integration of trade), the free flow of capital (integration of investment), and the labor movement.43 however, asean does not set the customs union as applied by the eu in establishing aec.44 it makes a difference in the step taken between asean and the eu about regional economic integration. asean economic integration is characterized by market-driven, while the eu is government-driven. market-driven makes asean feasible to adopt an "open regionalism" framework, which widens asean's economic cooperation to non-member states. in contrast, the eu's customs union is an exclusive trade liberalization among its member states.45 this different pattern of economic community between asean and the eu brings about the consequence regarding sovereignty concerns. market-driven in creating an economic community shows that asean did not intend to create a single supranational authority to regulate the market as it has done by the eu. therefore, sovereignty concerns are essential for asean in establishing a regional community without impeding each member's sovereignty. om the other hand, the eu, either institutionally or constitutionally, has a different pattern from asean. the eu and asean take a different path in adopting the economic community to create a single market: the eu comes with a governmental approach. asean rises with the market approach. these two approaches bring different consequences to the policies applied to the member states of both organizations. although the debate on the sovereign concern of the eu is still going on, the transformation of the european countries which adopt a single market into the eu has a clear line. the eu's government-based approach brings to the political union 42 asean secretariat, asean economic community blueprint (association of southeast asian nations, 2008), 5. 43 a. m. el-agraa, ed., the european union: economics and policies, 9th ed. (cambridge, uk; new york: cambridge university press, 2011), 34. 44 the european economic community began with the customs union. there is free trade in all goods that come through any union members, even imports from outside the customs union. thus, it has a common customs tariff and, under its operating treaties, has the power to negotiate with other countries on behalf of its member states. 45 kiki verico, “can asean achieve economic community?,” the jakarta post, accessed december 29, 2017, http://www.thejakartapost.com/news/2012/12/24/can-asean-achieve-economic-community.html. sovereignty and legal personality … muhammad bahrul ulum 36 in which the member states are integrated into single governance under the eu. thus, the eu can create and regulate policy to be applied to the member states. irrespective of this debate, the eu has characteristics of a governmental system in which the eu enters into international relations on behalf of the member states to certain international agreements with other states or international organizations. also, this system applies division of power between the eu and member states. insofar, the federal government reserves some powers to the state (local) government that the central government may not exercise. these similarities conclude that the eu's characteristics are inclined to apply the federal system rather than exercise to be a just regional organization. the eu takes several parts, which are the domain of the member states. it can be exemplified by the common commercial policy (ccp). it applies uniform trade relations with third countries, mainly through common customs tariffs, exports, and import policies. thus, this policy has been widened by the treaty of lisbon, which came into force in december 2009. article 207 of this treaty includes some foreign direct investment elements (fdi) to the common commercial policy. c) the warning of the state sovereignty the classical concept of international law presupposed that the states are equal. it only deals with the interaction of states. however, international organizations' emergence, especially after the international organization is deemed the subject of international law, brings a dynamic picture of international law today. thus, the state's sovereignty, which formerly should satisfy other states' constitutional independence, evolves with different spectrums. it may widen, which is no longer concerning the constitutional independence of other states. however, it should satisfy other entities' constitutional independence (including states, international organizations, and multinational enterprises). in this case, the state is bound by the agreements by entering into international agreements. as a consequence, the independence of the state is restricted by agreements. however, in this era, the state needs to deepen interaction with other entities, especially other states and international organizations. such organizations likewise govern policy, which should be implemented at the national level by the states. for instance, membership in the wto brings the consequences of applying the policy governed by this institution. in another case, the eu's establishment brings us to rethink the sovereignty of its member states. the member states are subject to the common commercial policy, common monetary policy, and political union through the institutions under the eu. in respect of the jurisdiction, the eu exercises powers beyond the state. for example, the european court of justice functions as the higher suit other than the supreme court of the member states. each eu citizen can challenge supranational judiciary organs to satisfy justice, which was not compiled by the member state jurisdiction. it affirms that the emergence of dynamic state relations renders today's sovereignty in the modern world. besides, it occurs by establishing a regional union with political union patterns such as the eu. it generally affects the concept of sovereignty to transcend the limits of sovereignty and jurisdiction. the globalizing world is the reason for this challenge. modern globalization today transforms dynamic political and economic relations among states and entities. besides, the worldwide liberal regulation by reducing tariff barriers to trade wto law is also an instance of this transformation toward waning of state sovereignty. however, the debate over state sovereignty becomes impossible to avoid in the uk's constitutional politics, particularly from the pre-brexit to the post-referendum. following the contentious withdrawal of britain from the european union, the discussion has re-emerged on the importance of the sovereignty issue among eu member states.46 indeed, the uk was not part of the eu original members, which asserts that the uk participation in the eu did not 46 michael gordon, “the uk’s sovereignty situation: brexit, bewilderment and beyond …,” king’s law journal 27, no. 3 (september 2016): 333, https://doi.org/10.1080/09615768.2016.1250465. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 37 influence the eu governance model to the supranational level body that the original members designed. while the uk participation has questioned the importance of sovereignty, british constitutionalism has been designed explicitly and significantly by the concept of sovereignty. in particular, britain's referendum on eu membership in 2016 has been a centerpiece to intensify sovereignty's legal and political dimensions. the debate often refers to the misunderstanding of the constitutional doctrine that counters parliamentary sovereignty to the eu's pooled competence from the member states. gordon argues that this debate that enquires the proper balance between national and eu powers and competence will remain even after the brexit.47 while agnew concludes that the uk's taking back control reflects british inconvenience as a royal state which then cooperates with the framework of granting significant national authority to supranational entities.48 3. international legal personality the root of international legal personality comes from international law. however, it also represents one of the pillars of municipal law. to better understand the notion of legal personality, it needs to review the function of personality in municipal, private law. a legal system has to determine whom it endows with the rights and duties and whose actions it takes into account by attaching legal consequences to them. to this effect, municipal law usually includes a law of persons. historically, persons' law comprised classes like nobles, clerics, serfs, or slaves. it allocated a different degree of personality in law. most of these distinctions vanished from the private law of persons in the nineteenth century. as an effect of the emerging right to form groups and associations in most countries, new categories of legal personality, in respect of corporate nature, were introduced into the private law of persons. for law, these recognized groups and associations were regarded as distinct entities from the individuals composing them.49 in international law, it has to be determined which entities have rights and duties and act legally. the notion of legal personality is traditionally employed and accordingly called international legal personality.50 this notion of international legal personality comes from the view of the entity entitled to rights and duties derived from international law. the entity accrues the importance of legal personality to such an entity because it has rights and duties to operate in the international arena.51 therefore, international persons can claim direct protection by international law to fulfill their rights and duties. the international legal personality is given to the entity when such entity has legal capacity entitled rights and duties to enter into international relations, including international agreements with other entities. if the entity does not have such capacity, it cannot have an international legal personality. a) the spectrum of international legal personality some views presuppose an entity to have an international legal personality. in the view of portland, there are at least five concepts of international legal personality identified as being present in international legal argument comprising: (a) the states-only conception; (b) the recognition conception; (c) the individualistic conception; (d) the formal conception; and the actor conception.52 these conceptions consider different entities to be international persons, 47 ibid., 341. 48 john agnew, “taking back control? the myth of territorial sovereignty and the brexit fiasco,” territory, politics, governance 8 (december 16, 2019): 12, https://doi.org/10.1080/21622671.2019.1687327. 49 roland portmann, legal personality in international law (cambridge; new york: cambridge university press, 2010), 7. 50 ibid., 8. 51 dapo akande, “international organizations,” in international law, 4th ed. (oxford university press, 2014), 251. 52 portmann, legal personality in international law, 13. sovereignty and legal personality … muhammad bahrul ulum 38 contain different mechanisms to become one, and attach different consequences to being more.53 it describes that the conceptions above bring the spectrum of the notion of an international legal person. first, it is the states-only conception. the first position reserves international personality exclusively to states. there are no conditions for international personality other than having acquired statehood. the corollaries of personality are synonymous with those of being a state. hitherto, the position is scarce, but it is essential in historical context and is, at times, still relevant for legal issues today.54 second, it is the recognition conception. it asserts to conceive states as the original primary persons of international law. however, other entities can acquire international legal personalities, often called derivative or secondary international persons. the mechanism through which this is possible is an explicit or implicit recognition by states. in order to be international persons, in principle, it entails fundamental international rights, duties, and capacities analogous to those of states.55 third, it is the individualistic conception. it is a presumption for the individual as an international person in the so-called fundamental norms of international law. also, states and various other entities can be international persons. if international norms address them, individuals become internationally responsible for violations of fundamental international norms irrespective of whether they act in a public or private function.56 fourth, it is the formal conception. it declares international law as an open system. there is no presumption as to who is a legal person. international personality becomes a posteriori concept, which means every entity is an international person that, according to general principles of interpretation, is the addressee of international law norms. there are no consequences attached to being an international person.57 fifth, it is the actor conception. it rejects the concept of international personality as traditionally understood. it stipulates a presumption that all effective actors in international relations are relevant to the international legal system. an international decision-making process determines the specific rights and duties of particular actors. the actors themselves participate depending on their effective power.58 the column below explains the original assumptions that underlie the conceptions of international personality. as the table indicates, these assumptions differ in several respects.59 b) international organizations' legal personality although often referred to 19th and early 20th centuries, states were the only international law subjects. it was decisively established in the reparation for injuries advisory opinion that other entities, particularly international organizations, also possess international legal personality. the case arose out of the murder of a un mediator in jerusalem by a jewish group. the un general assembly requested an opinion from the international court of justice on whether the un could bring an international claim against israel to obtain reparation for injuries done to the organization and its agents. article 104 of the charter imposes an obligation on un member states to confer legal personality on the organization within their domestic legal system. nothing in the charter expressly grants international personality to the un. nevertheless, the court found that the un possesses an international legal personality, arguing that this was necessary to fulfill its functions. the court also deduced legal personality from the 53 ibid. 54 ibid. 55 ibid. 56 ibid. 57 ibid., 14. 58 ibid. 59 ibid., 245. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 39 powers and rights given to the un (the power of decision-making, the domestic legal system, immunities, and privileges and treaty-making powers) under the charter. the organization occupies a position in a certain respect in detachment from its members. the organization aimed to exercise and enjoy function and rights, which can only be explained based on a considerable measure of international personality and the capacity to operate on the international plane.60 it asserts that international organizations possessing international legal personality can have international rights, capacities, or duties. however, the possession of international legal personality does not define the particular capacities, rights, or duties that any particular organizations possess, nor does it indicate that they possess the same capacities, rights, or duties.61 the alternative and better view are that international organizations can attain objective legal personality independent of recognition by performing certain functions on the international plane. it was the position taken by the court in reparation for injuries. then, the international court of justice held unanimously that the un was a legal person with the capacity to bring claims against both member and non-member states for direct injuries. the power to bring such claims was regarded as concomitant with legal personality. however, the court also expressed its conclusion regarding implied powers and effectiveness. similar reasoning may apply to other organizations. thus, the capacity to espouse claims depends on the existence of a legal personality. it also depends on the interpretation of the constituent instrument in light of the particular organizations' functions.62 c. conclusion given the globalization that offers more reciprocal relations between states, state sovereignty remains the crucial issue. the problematic intersection of globalism and the emerging hypernationalism has entered the contentious landscape of national interests among industrial countries, exemplified by the uk that left the european union. it also puts a crucial debate within developed countries as which it refers to the westphalian model. indeed, the european union's integration has provided a new landscape in international law's state relations. it will influence the future model in organizing power from the state to the regional level. however, the brexit experience provides the perspective. to some extent, economic globalization aims to liberalize the economic relations between states. however, from the brexit, the desire for regional integration will face more persistent barriers to establishing a more integrated economy. other members of the regional organizations like asean will learn from this episode, and it will adversely impact the desire for integration without sacrificing the sovereignty of each member state. references agnew, john. "taking back control? the myth of territorial sovereignty and the brexit fiasco." territory, politics, governance 8 (december 16, 2019): 1–14. https://doi.org/10.1080/21622671.2019.1687327. akande, dapo. "international organizations." in international law, 4th ed. oxford university press, 2014. bravo, karen e. "challenges to caribbean economic sovereignty in a globalizing world." mich. st. u. coll. l. int’l l. rev. 20 (2011): 33. brownlie, ian. principles of public international law. clarendon press, 1973. 60 akande, “international organizations,” 252. 61 ibid. 62 crawford, brownlie’s principles of public international law, 180. sovereignty and legal personality … muhammad bahrul ulum 40 coleman, andrew, and jackson nyamuya maogoto. "'westphalian' meets 'eastphalian' sovereignty: china in a globalized world." asian journal of international law 3, no. 2 (july 2013): 237–69. https://doi.org/10.1017/s2044251313000179. crawford, james. brownlie's principles of public international law. oup oxford, 2012. el-agraa, a. m., ed. the european union: economics and policies. 9th ed. cambridge, uk; new york: cambridge university press, 2011. european union. "the lisbon treaty: the principle of subsidiarity, the european summaries of eu legislation." accessed april 15, 2015. http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0017_ en.htm. gordon, michael. "referendums in the uk constitution: authority, sovereignty and democracy after brexit." european constitutional law review 16, no. 2 (june 2020): 213– 48. https://doi.org/10.1017/s1574019620000152. ———. "the uk's sovereignty situation: brexit, bewilderment and beyond …." king's law journal 27, no. 3 (september 2016): 333–43. https://doi.org/10.1080/09615768.2016.1250465. herdegen, matthias. principles of international economic law. oup oxford, 2013. jackson, john h. "sovereignty: outdated concept or new approaches." in redefining sovereignty in international economic law, 3–25. oxford; portland: hart, 2008. jackson, robert h. quasi-states: sovereignty, international relations and the third world. cambridge studies in international relations 12. cambridge: cambridge university press, 1999. juwana, hikmahanto. “asean’s legal personality,” 2010. http://www.thejakartapost.com/news/2010/08/26/asean%e2%80%99s-legalpersonality.html. lowe, vaughan. "sovereignty and international economic law." in redefining sovereignty in international economic law. oxford; portland: hart, 2008. petersmann, ernst-ulrich. "state sovereignty, popular sovereignty and individual sovereignty: from constitutional nationalism to mutilevel constitutionalism in international economic law?" in redefining sovereignty in international economic law. oxford; portland: hart, 2008. portmann, roland. legal personality in international law. cambridge; new york: cambridge university press, 2010. qureshi, asif hasan, and andreas r. ziegler. international economic law. sweet & maxwell, 2011. schaffer, richard, filiberto agusti, and beverley earle. international business law: a conceptual approach. new delhi: cengage learning india, 2009. secretariat, asean. asean economic community blueprint. association of southeast asian nations, 2008. verico, kiki. "can asean achieve economic community?" the jakarta post. accessed december 29, 2017. http://www.thejakartapost.com/news/2012/12/24/can-asean-achieveeconomic-community.html. a. introduction b. discussion 1. revisiting state sovereignty a) territorial sovereignty and non-intervention b) sovereign immunity of state c) sovereignty and international organizations 2. sovereignty in international economic relations a) economic sovereignty in a globalizing world b) sovereignty concerns of regional organizations c) the warning of the state sovereignty 3. international legal personality a) the spectrum of international legal personality b) international organizations' legal personality c. conclusion 1 non-claimant states perspectives on the south china sea dispute rusmuliadi national taiwan ocean university, taiwan, e-mail: moel.muliady@gmail.com submitted: august 26, 2022; reviewed: february 03, 2023; accepted: march 31, 2023. article info abstract keywords: unclos, south china sea dispute, non-claimant states perspectives. doi: 10.25041/lajil.v5i1.2717 the problem in the south china sea is becoming increasingly complex because other parties outside the claimant country also fight for their regional interests. the other party was later called a non-claimant state in the south china sea area. the main purpose of these nonclaimant states is to ensure that international law of the sea is enforced in any part of the sea on the planet. the main reason is to ensure safety and freedom to cross this route, the main sea route for transporting various goods and commodities with high economic value. in general, these non-claimant states oppose china's actions that do not follow the agreed unclos. the juridical normative research methods with literature studies present the legal basis for the actions of non-claimant states in the south china sea region. this study describes the basis of international law as well as the interests and policies of non-claimant states such as indonesia, the usa, the uk, australia, the eu, japan, and india over the south china sea region, which is most active in showing their attention to the dynamics in the south china sea. a. introduction the south china sea disputes are not only involved with neighboring countries as claimants. complications of problems are also colored by non-claimant states directly or indirectly interested in the area. as previously stated, the south china sea is the main sea transportation route in the asia-pacific region1. as a significant energy line, transit point for one-third of global crude oil and half of global liquefied natural gas. south korea and japan on this route about 66% and 60% of their energy imports because it is a transportation route2. given the enormous economic importance of each regional stakeholder, they are concerned about trade disruptions due to disputes or direct conflicts in contested waters. in december 2015, the commander of the us pacific fleet issued a stern warning against china building military bases around its artificial islands that are still in dispute with other countries. the united states is not a claimant, but it still needs to initiate the management and resolution of disputes considering its role as a guarantor of regional security. however, china's escalating actions and current policies have led to more regional players getting involved in south china sea issues, both in the diplomatic arena and in the contested waters. as a result, 1 mcdevitt, “the south china sea: assessing u.s. policy and options for the future.” (2014). 2 us energy information administration, “south china sea energy brief.” volume 5 number 1, march 2023: pp. 1-14. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil non-claimants states … rusmuliadi 2 the non-claimant states are likely to play a more significant role in influencing events in the south china sea. understanding the perspectives of non-claimant countries such as indonesia, the united states, australia, india, japan, singapore, south korea, and the two multilateral organizations, asean and the eu, is critical. despite disparities in geography, politics, and economics, it is clear that strategic interests push all of these non-claimant3 players to maintain security in the south china sea. table of the trade value of several countries that pass through the south china sea country % share of world gdp trade value through scs (uds billions) scs trade as % of all trade in goods us 24.5 208 5.72 china 14.8 1470 39.5 japan 6.53 240 19.1 germany 4.58 215 9.00 uk 3.46 124 11.8 france 3.26 83.5 7.77 india 2.99 189 30.6 italy 2.45 70.5 8.14 brazil 2.37 77.3 23.4 canada 2.02 21.8 2.67 source: csis project, international monetary fund non-claimant states feel the need to advocate for the value of preserving freedom of navigation, rights of passage, and overflight in the south china sea, in addition to economic issues. all non-claimant states demand that disputes be resolved peacefully following international standards and law. the execution of amicable dialogue to resolve the conflict is anticipated to be maintained by asean's stance in this instance. the slightest error, though, will put stability in the peace at risk and trigger a bigger escalation. according to an international relations specialist from europe, mathieu duchâtel, an institution's approach to collective security would be in jeopardy if international legal decisions were not supported. all claimant nations must be aware of and act upon the desire of nonclaimant states to uphold international norms and protect the rights of the world community to the sea under international law. several non-claimant states have conducted specific marine deployments in the south china sea to demonstrate their interest, concern, and resolution, despite all non-claimant states formally supporting peaceful conflict resolution4. us naval officer admiral thomas fargo claimed the country's south china sea navigation operations are based on prominent freedoms. notwithstanding its quieter mission in the waters, rory medcalf stressed that australia would continue to exercise its rights and seek a rules-based strategy. india, like china, has increased its operational presence in the south china sea. a set of four frigates completed a two-month deployment in june 2015, and one frigate deployed to the philippines again in november. 3 tiffany ma and michael wills, “raising the stakes: the interests of non-claimant states in the south china sea disputes,” asia policy 21, no. 1 (2016), pp. 2–5. doi:10.1353/asp.2016.0019. 4 bill hayton, "how to solve the south china sea disputes" iseas – yusof ishak institute. (2022). lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 3 in terms of arms sales and military tactical equipment, a number of non-claimant governments have also stepped up their military cooperation with southeast asian claimant states. india and malaysia now work more closely together militarily. to help lessen political and military pressure from china, japan also routinely holds combined coast guard drills with some of its southeast asian allies, including the philippines and vietnam. by assisting southeast asian claimant states to improve their marine and coast guard capacities, some european nations are also not left behind. frigates from the netherlands and anti-ship cruise missiles from france were ordered by vietnam. armed light helicopters are imported by the philippines from france and italy. the actions done are not provocative attempts to promote the militarization of conflicts. this initiative is part of the non-claimant governments' efforts to foster more collaboration, avoid tensions from rising, and stop china from putting too much pressure on them5. several nations, in this case, non-claimant states, are concerned about china's escalating aggressiveness in the south china sea and its rising influence and profile on the international scene. we will go into detail about the perspectives of numerous non-claimant states to explore regional geopolitical issues concerning the interests of their governments in the south china sea. the author uses juridical normative research methods with literature studies, namely by examining library materials or secondary data as a basis for research by searching for regulations, in this case, unclos, and literature related to the problem under study6. this research has an analytical descriptive providing a clear and comprehensive description of the provisions of international law related to the position of non-claimant states in the south china sea dispute. furthermore, explain how the policy and the position of the non-claimant states in the south china sea dispute. b. discussion in explaining the problem in the south china sea need to be careful and pay attention to several aspects so that it does not seem subjective in the presentation. the number of interested parties complicates the problems in that area. moreover, it is undeniable that both the claimant and non-claimant countries are fighting for their respective national and economic interests. each country must have its perspective in assessing the south china sea issue. the legal basis for non-claimant states in the south china sea is unclos 1982, in the section that regulates freedom of navigation. for example, articles 36 on freedom of navigation in straits used for international navigation, articles 58 on freedom of navigation in the exclusive economic zone, and articles 78 and 87 on freedom of navigation on the high seas. then regarding the right of innocent passage in the territorial sea and through archipelagic waters as stipulated in articles 17 to 26 and 52, as well as the freedom of passage in transit in straits used for international navigation as contained in article 38. the three freedoms have the same meaning regarding the freedom of movement of ships. what distinguishes it is the different influences and limitations the coastal states imposed on the freedom of movement. in other words, it is returned to the regulations of each country as long as it does not conflict with unclos. many non-claimant countries actively pay attention to the south china sea issue. however, this time we will discuss some of the most vocal and get the public's or international media's attention, such as indonesia, the united states of america, the united kingdom, australia, japan, the european union, and india. this study will specifically describe the views of nonclaimant countries and the policies taken in addressing the south china sea issue, as well as 5 ibid. 6 theresia anita christiani, "normative and empirical research methods: their usefulness and relevance in the study of law as an object". procedia. (2015). non-claimants states … rusmuliadi 4 review the position of this non-claimant in international law of the sea. it will be described as follows. 1. indonesia indonesia is the largest country in southeast asia and the largest archipelagic country globally. indonesia's position, which connects two oceans, namely the indian ocean and the pacific ocean, makes it a country with a strategic geographical location, including part of the south china sea area, based on a map made by the international hydrographic organization (iho). besides, indonesia sometimes clashes with other countries regarding violating maritime zone boundaries. in the context of this research, in the south china sea region, which indonesia calls the "north natuna sea," indonesia is often in conflict with other countries, especially china. indonesia's constitution, which mandates maintaining world order, leaves indonesia with no choice in resolving disputes other than negotiating with related countries. this is because indonesia's zee limit overlaps with the other nine-dash borders of china even though indonesia is one of the members of asean countries that does not participate in embedding its claim to the south china sea area. however, indonesia has officially stated that the position has been determined as a non-claimant country over the south china sea area. indonesia's stance is critical for maintaining security in the south china sea region. because it was one of the founding members, indonesia has a large voice in how the asean work agenda is formed, including how the south china sea issue is addressed. the asean forum has already addressed the south china sea dispute7. one of them attended the 2012 asean foreign ministers conference in phnom penh. indonesia prefers a multilateral approach to conflict resolution, as seen by its adoption of the 2002 declaration on the behaviour of parties to disputes in the south china sea and its attempts to construct the declaration of conduct (doc). indonesia's “free and active” foreign policy is one of the strongest supporters to show indonesia's bargaining power to reconcile the claimants in the south china sea region8. step by step, improving the situation in the south china sea tends to progress. however, the philippines' unilateral decision to take the south china sea dispute case to the international arbitration tribunal in the hague is a setback in maintaining security stability in the region. this action shows the incompatibilities among asean member countries. on the other hand, the diplomatic efforts taken so far have become meaningless. many international relations experts regretted the philippine decision and considered it a sign of disharmony in relations between asean members. but the philippines believes it is the best way to pressure china in its maneuvers in the south china sea. as a result, the philippines' victory in the trial did not significantly influence china's regional policy. nevertheless, china has continued its claim and strengthened it by building several artificial islands in the disputed area. the philippines' unilateral actions will undoubtedly affect the harmonization of relations between asean countries. even though on the other hand, it harms the harmony of relations between asean countries and china. nevertheless, the philippines' victory in the tribunal cannot be denied; that also benefits other asean member countries, including indonesia itself, further strengthening its position in fighting for the north natuna sea maritime boundaries. the basis of international law of the sea is becoming more assertive in fighting for national interests. despite the repeated exchange of protest notes between indonesia and china at the un council against claims of the u-shaped line, indonesia still welcomes economic and security 7 ristian atriandi supriyanto, out of its comfort zone: indonesia and the south china sea. asia policy, number 21. (2016) pp. 21-28. 8 ibid. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 5 cooperation with china. indonesia's non-claimant status allows it to avoid the political burden of territorial disputes while fostering closer cooperation with china and the united states. china is one of indonesia's largest trading partners, with a total value of around $27.2 billion9. the indonesian government welcomed china's statement to finance large-scale infrastructure projects, such as ports, which is expected to help accelerate the achievement of president widodo's maritime agenda. due to its "intimacy" with china, indonesia became frightened of the possibility of a free and active political transition, which it had before repeated. indonesia continues to work with the us and other western nations to avoid being accused of going against its independent and active foreign policy. the us continues to be one of indonesia's top trading and investment partners, and it has even expressed interest in joining the trans-pacific partnership, which we are spearheading. additionally, indonesia wants to strengthen its naval ties with the us and its allies. tensions that continue to increase in the south china sea have made indonesia and the us work together to conduct regular flights and submarine operations to conduct military survey in the natuna islands and surrounding waters. in addition, from 2015, the us funded the operation of the southeast asia maritime security initiative, of which indonesia was one of the beneficiaries. the assistance helps indonesia develop coast guard equipment to patrol marine areas that are difficult to reach, given indonesia's vast marine area, including the waters around the natuna islands. it is important to note that accepting this assistance can be interpreted as a sign of indonesia's alignment with the united states10. indonesia hopes that all major powers, including the united states and china, will remain at peace with each other. thus, the security of the asean region is maintained because it is not pressured by one of the major powers. 2. the usa. as a superpower, america always appears in every strategic water dispute. for example, the strait of hormuz issue, the mediterranean sea disputes, the north sea, the strait of malacca, and many more. especially on the theme of this paper, namely the south china sea dispute11. as the non-claimant states, america is the most frontal against china in determining its claims in the south china sea. geographically speaking, the south china sea is pretty far away from america. however, the us considers the situation in the south china sea crucial from a political and economic standpoint. as mentioned in the previous chapter, the tankers use the south china sea and the straits of malacca to convey cargo, oil, and other commodities from middle eastern nations to america. the south china sea is used for most oil and gas imports to china, south korea, and japan. for the continued growth of east asian economies, the seabed can also be a major source of energy supply. however, compared to china, the us estimates of potential energy reserves are substantially lower. additionally, investments totaling $160 are located in southeast asia12. by us companies and is america's fifth-largest trading partner. so the stability of security in the region is vital for america. the freedom of navigation campaign is the main reason for america to show its existence in the south china sea. for the us, based on unclos articles 78 and 87 concerning freedom 9 ibid. 10 united states department of state bureau of oceans and international environmental and scientific affairs, limits in the seas no. 141, indonesia archipelagic and other maritime claims and boundaries. office of ocean and polar affairs bureau of oceans and international environmental and scientific affairs u.s. department of state. (2014). 11 bronson percival, “u.s. perspectives on the south china sea,” s. rajaratnam school of international studies report (2014). 12 ibid. non-claimants states … rusmuliadi 6 of navigation on the high seas, the middle part of the south china sea is a high sea that each country has the right to pass through without asking permission from any party. china objected to america's attitude, which is considered disrespectful and ignores the current situation as a claimant country13. on the other hand, america's presence is advantageous for asean countries and claimants to the south china sea region. moreover, america's involvement in the region offsets china's economic and military power dominance. in early 2021 the united states navy's aircraft carrier fleet entered the south china sea. the fleet was led by the aircraft carrier uss theodore roosevelt. china considers this action provocative and does not respect the conflict situation in the region. in response, china also held military exercises in the waters for a month. the increasing military and naval cooperation was exacerbated between america and southeast asian countries such as indonesia, malaysia, the philippines, singapore, and vietnam14. america believes maintaining peace and security throughout asia is increasingly critical to global progress. whether through maintaining freedom of navigation in the south china sea, countering north korea's proliferation efforts, or ensuring transparency in north korea's military activities, crucial issues, and other developments in the region. these measures are intended to protect america's vital interests in stability and freedom of navigation and have paved the way for continuing multi-party multilateral diplomacy with claims in the south china sea. seeking to ensure disputes are resolved peacefully and with established principles of international law. at a meeting of asean defense ministers in late october in bali, us defense secretary leon panetta said there is no doubt that the pacific will be a priority to protect international rights to move across the oceans freely. rising tensions in the south china sea pose the most challenging security issue in china's relations with southeast asia. us support for basic american security principles provides many reasons for southeast asian countries to seek to improve bilateral relations with washington. the role of the us is also seen as supporting asean's position in the south china sea. to defend its interests in the region, the united states has offered a number of securityrelated solutions. when deploying its armed troops between the pacific and indian oceans, the united states relies on unrestricted access to the south china sea's airspace and waterways. but the united states must also take into account using china's fleet. despite the weak naval power projection capabilities of the people's liberation army (pla) navy, china advanced by building a sizable naval station on hainan island. the station improves the capability of the chinese navy to send units into the south china sea. the us power posture has changed, but not just because of the south china sea15. us policy consistency regarding the south china sea from 1995 is still ongoing. however, us interest in these waters diminished as china and several asean countries set aside conflicting claims in the south china sea as beijing's approach to asean countries intensified. as the strategic situation developed, the united states has reacted pragmatically and according to the old policy. the two elements of us policy for the south china sea are distinct and should not be combined. first, the united states does not take a legal basis of competing sovereignty claims in the south china sea. second, the fundamental national interest for the united states is to maintain the principle of freedom of navigation. therefore, the united states states that states may not restrict military survey operations within their exclusive economic zones16. 13 ibid. 14 mclaughlin, “u.s. strategy in the south china sea perspective.” american security project, (2020) pp. 1-14 15 rahman and tsamenyi, “a strategic perspective on security and naval issues in the south china sea.” ocean development and international law. (2010). pp. 315-333. doi: https://doi.org/10.1080/00908320.2010.499277. 16 ibid. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 7 the united states and 11 other nations denounced china's conduct in the south china sea during the asean regional forum (arf) summit in july 2010, which sparked a diplomatic dispute with china. however, the us has reiterated to foreign media that it respects international law in the south china sea and has a national interest in maritime freedom of passage and open access to asia. additionally, the us volunteered to mediate the code of conduct negotiations between all south china sea claimants. in response to the us action, china reassured southeast asian countries by sending former premier wen jiabao and other chinese leaders to the area and exercising prudence in the south china sea. as a result, there were no significant accidents for eight months. furthermore, to execute the declaration on the conduct of parties in the south china sea, china also consented to a meeting of the asean-china joint working group (doc). 3. the united kingdom the construction of an outward-looking "global uk" posture reform with global reach and impact and a "support rules-based system" has been sparked by the uk's exit from the european union (brexit). britain has historical, diplomatic, military, and trade relations in the south china sea region. the presence of commonwealth allies malaysia, singapore, and brunei darussalam, as well as the uk's and australia's and new zealand's commitments to the five powers defense arrangement, which includes malaysia, singapore, australia, and the uk. the need to maintain a presence and contribute to regional security and stability is further underscored by the global balance of power change from the euro-atlantic to the indo-pacific, particularly concerning regional economic interests. the region is essential to the global trading system in addition to the uk's strong economic, military, and diplomatic interests there. the south china sea is the leading commerce route for the uk between europe and east asia. the south china sea is traversed annually by 12% of the uk's seaborne trade or £97 billion worth of imports and exports. china, hong kong, japan, singapore, australia, and south korea comprise six of the uk's top 25 commercial partners17. as of april 2019, china was the third-largest export market and third-largest source of imports for the uk. southeast asia is also the third-largest market for defense exports from the uk and its third-largest non-eu export destination. britain has historically had close relations with south and southeast asia, formed from the colonial period. this relationship continues to this day. singapore is home to the regional defense staff and naval logistics facilities for the british armed forces. brunei is home to the british army's jungle combat training facility, including a gurkha battalion. according to a chinese scholar, official british documents from 1955 to 1957 show that, at least in part, during the early cold war, britain did not view the south china sea region as being of main strategic importance. nevertheless, britain accepts or supports china's assertion of sovereignty18. south china sea dispute has become more contentious in the twenty-first century, and britain has gradually begun to pay greater attention to the maritime conflict. early in january 2014, the country's foreign secretary william hague claimed that britain's presence in asia ensured trade and security. the key issue is that every region, including the south china sea, continues to abide by international law. power-based dispute resolution is not preferred over rule-based resolution. the significance of freedom of navigation and a rules-based regime in the south china sea has been emphasized time and time again by the uk secretary of state and defense. britain expressed concern about the south china issue in march 2018 and stressed the significance of 17 yoji koda, “japan’s perspectives on u.s. policy toward the south china sea,” perspectives on the south china sea: diplomatic, legal, and security dimensions of the dispute, no. september (2014), pp. 82–95. doi: 10.1353/asp.2016.0011. 18 ibid. non-claimants states … rusmuliadi 8 open and accessible sea lanes. gavin williamson, the defense secretary for the united kingdom, said in a speech in february 2019 that britain "may have to act" in the future to face china for "violating international law" and "rising back" in terms of restocking its arsenal19. he added that the pacific would be the focus of hms queen elizabeth's maiden operational mission. according to some british politicians, china's activities in the south china sea are not based on rules. furthermore, after establishing its military base in the south china sea region, freedom of navigation is threatened. britain was also concerned that china would threaten the free movement of anglo-american military ships. as a result, in september 2018, china assessed that britain had violated international maritime law and threatened china's national security, where there was activity by british military vessels, namely royal navy ships, entering the sea within 12 nautical miles of the paracel islands20. credible engagement with the region will be a key priority for the uk as long as the uk aspires to remain a global actor, given the indo-increasing pacific's strategic importance. this trend is expected to persist in the long run. however, the strategic problem that must be overcome is finding a middle ground between opposing demands to uphold a rules-based order, relations with washington, connections with regional partners, and forging pragmatic relations with beijing. 4. australia australia first became involved in the south china sea during the cold war, when the australian air force supported ally efforts to detect soviet ships and submarines. australia and north asian nations' long-standing commercial ties have made them heavily dependent on this sea route. because of this, australia viewed the south china sea primarily in terms of the cold war, referring to it as the only space for australian surveillance planes from the advance station at butterworth, malaysia21. with the end of the cold war, canberra began to acknowledge concerns about "competing for territorial claims" among "well-armed nations." this situation remains one of many regional problems that must be "handled with care" rather than a significant threat22. this is still an era when china's growing military power and economic weight are a concern. canberra has maintained strong efforts to build a long-standing trust-building, transparency, and conflict-prevention regime in asia. australia is also active in regional security diplomacy, including building cooperation with asean forums to maintain regional stability and security. as one of the economic powers in asia-pacific, australia has a significant interest in the south china sea. australia has many reasons to engage in this critical strategic challenge23. by the end of 2015, the australian air force had used freedom of navigation, underlining canberra's determination to uphold its rights and urge for an international response to tensions based on established rules. however, there is still some ambiguity on how far australia is willing to go, especially in light of its economic ties with china. ausmin, or the australianunited states ministers joint communiqué, was signed by australia and the united states in 19 ian storey, “britain , brexit , and the south china sea disputes,” maritime awareness project analysis (2020). 20 ibid. 21 australia’s defense white paper 1987. https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp1516/defendaust/1 987. (accessed june 14, 2022). 22 australia’s defense white paper 1994. https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp1516/defendaust/1 994. (accessed june 14, 2022). 23 medcalf, “rules, balance, and lifelines: an australian perspective on the south china sea.” asia policy. (2016). pp. 6-13. doi: https://doi.org/10.1353/asp.2016.0002. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 9 september 201124. outlining national interests in trade in the south china sea, freedom of passage, peace, and stability, respect for international law and its unimpeded enforcement, and no position is taken on conflicting territory claims, force or coercion is highly rejected. a comprehensive vision for engagement with asia is presented in australia's military white paper from 2012, emphasizing the economy. the south china sea is currently a substantial challenge that australian foreign and defense officials cannot ignore, even though it is unclear what should be done about it. australian officials have many justifications for why their interests are involved in the south china sea dispute. the term "make international law the key reference in making choices" is one of them. it frequently appears in ministers' and senior officials' speeches, remarks, and bilateral and trilateral communiqué. australia enjoys remarkable trade and energy flow interconnectedness with other nations, which is advantageous from an economic perspective. southeast asian waters serve as a crucial maritime route, and the south china sea is traversed by around 54% of australia's entire international trade. australian government representatives also noted that the south china maritime region's southeast asian sea route was the main hub for trade movements in the asiapacific region25. due to this, australia is worried about the continued ability to use international waters in a setting governed by laws. 5. japan for japan, the south china sea is a territorial dispute between coastal states and a trigger for significant problems that can lead to direct military clashes, undermine existing stability, and potentially bring the region and the world into an unprecedented chaotic situation. furthermore, china's reclamation and military development activities for japan are worrying because, ultimately, it can make china take complete control of sea communication lines. then, the emergence of tensions between china and the united states, japan's main allies, poses a threat to regional stability. before the end of the cold war, japan's security policy had a narrow focus on its defense. japan considered any offensive or defensive action against an adversary's home country unconstitutional. the japan self-defense forces (jsdf) are exclusively limited to fending off the foreign military assault following japan's pacifist constitution. japan gradually increased the jsdf's role after the cold war26. however, the jsdf is explicitly barred from using force in any overseas assignment. the jsdf is limited to conducting military operations as a true armed force to defend japan's airspace, territory, and adjacent waters up to a distance of a thousand nautical miles. therefore, it is challenging to justify the deployment of the jsdf's full military capability for incidents in the south china sea. however, jsdf personnel can be sent on assignments apart from the home defense. the mission involves port calls, combined training and exercises, logistical support, humanitarian aid, disaster relief, and surveillance. in theory, an armed attack on allied forces would not constitute an act of direct aggression against japan but would challenge its national sovereignty and jeopardize its fundamental stability. under japan's new law, the sdf in the south china sea will be bigger than ever.27 therefore, it could be a subject of self-defense for japan. one thing to note is that the japanese government adopted another policy to strictly limit the conditions for exercising its right to collective self-defense in the above situations. the primary purpose of these restrictions is not to violate the current pacifist constitution. 24 ibid. 25 madan l. shrestha and takio murakami, “intraseasonal fluctuations in low‐level meridional winds over the indian ocean and monsoonal convection over south asia,” tellus a 40 a, no. 2 (1988), pp. 120–132. https://doi.org/10.3402/tellusa.v40i2.11787. 26 yoji koda, “japan’s perceptions of and interests in the south china sea,” asia policy 21, no. 1 (2016), pp. 29– 35. doi: 10.1353/asp.2016.0011. 27 ibid non-claimants states … rusmuliadi 10 from an economic point of view, nearly 80% of japan's crude oil imports pass through the south china sea. moreover, the decades-long non-military confrontation over the senkaku islands in the east china sea has drawn more attention from the government, media, and ordinary japanese people than the situation in the south china sea. in general, many japanese feel more comfortable sticking to an armchair interpretation of the pacifist constitution than facing possible real-world military risks. because of china's unilateral moves in the south china sea, coastal governments, especially non-claiming nations like singapore and indonesia, are concerned about potentially major conflict. however, many of these nations' military strength is extremely constrained and disproportionate to china's capabilities. thus, it is evident that japan can assist in boosting these nations' maritime capacities, with the navy and coast guard being given first attention28. japan started undertaking several capacity-building projects for southeast asian littoral nations in 2015, especially the philippines and vietnam, which have long been subject to political and military pressure from china. its activities include training maritime law enforcement personnel and moving non-military patrol boats. it is also acknowledged that the capacity of the air-maritime domain among the coastal countries of southeast asia is still minimal. therefore, japan and the us are intensively cooperating with southeast asian countries to encourage the improvement of the air-maritime domain. japan also encourages military exercises along southeast asia's coastline on a bilateral and multilateral basis. japan started military exchanges with nations in the south china sea region after the cold war, and ties were generally excellent. australia, indonesia, singapore, malaysia, thailand, brunei, the philippines, and vietnam are some of these nations. over the past 20 years, the jmsdf has also engaged in bilateral and global exercises with the warships of south china sea nations. these exercises show beijing that japan and the united states are ready to respond to any regional adventure, strengthening naval-to-naval ties, mutual understanding, and interoperability rapidly and significantly29. 6. european union g-7 foreign ministers from the european union, france, germany, italy, and the united kingdom issued a declaration on maritime security in lübeck in april 2015. in the declaration, they reaffirmed their dedication to international maritime law, namely as it is represented in unclos, and to freedom of navigation and overflight. the declaration made it clear that europe is concerned about "unilateral moves" in the east and south china seas, just like the united states and japan are. europe's aspirations and capabilities in terms of asian security are currently at odds.30. due to the deteriorating security situation in europe's near region, this gap is growing. such as the necessity to safeguard the populace of europe against terrorist attacks, the conflicts in eastern ukraine and syria, and the refugee crisis. in general, europe has stayed silent on recent events in the south china sea. instead, the eu's reaction to the worsening security situation has taken the shape of reactionary statements that reiterate the fundamentals of the peace agreement, international law, and the value of fostering confidence. the eu foreign and security policy guide in east asia summarizes this strategy. the statement outlines europe's interests in the south china sea in terms of advancing a rules-based international system, the principles of freedom of navigation, and the possibility of tensions that could harm trade and investment growth for all parties31. the paper also serves as an invitation to the plaintiffs to settle their differences amicably and in accordance with international law, while urging all parties to make their claims clear. 28 ibid. 29 renato cruz de castro, “china and japan in maritime southeast asia: extending their geo-strategic rivalry by competing for friends,” philippine political science journal : taylor & francis, (2013). 30 duchâtel, “europe and maritime security in the south china sea: beyond principled statements?” 31 ibid. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 11 in december 2015, nguyen tan dung, the prime minister of vietnam, paid a visit to brussels, underscoring europe's severe concerns regarding extensive land reclamation. the association of southeast asian nations (asean), which leads all initiatives to preserve peace and stability in the south china sea, is constantly emphasized as a final key component of the european strategy. the core of the european strategy for resolving the conflict in the south china sea is to adhere to the applicable legal standards and avoid taking sides with any party. in addition, europe has chosen to stress international law without declaring specifically which provisions of unclos or other texts are applicable in the given circumstance. due to this circumstance, the eu has decided not to support the philippines in the permanent court of arbitration publicly. when the court ruled that it had jurisdiction and competence over most of the issues raised by the philippines, the eu remained silent32. the permanent court of arbitration ruling serves as the foundation for the european strategy for south china sea security. europe is attempting to portray itself as a normative force that upholds the rule-based order of the world. however, that impression might suffer if the eu does nothing in response to china's disrespect for the permanent court of arbitration ruling. nearly all of the demands made by the philippines were granted by the court of arbitration, which has been the subject of policy discussions in europe about freedom of navigation in the south china sea since 2014. these studies ensure the effectiveness of europe's participation in asian security issues and its interaction with asian partners outside of commerce and investment. obviously, europe must abide by the court's ruling because it does so following applicable international law. the eu is in a challenging diplomatic relationship due to this circumstance. two european policy tools, namely arms sales and freedom of navigation activities, can affect developments in the south china sea. recent years have seen new agreements between southeast asia and european arms manufacturers. worth 2.682 billion euros in 2013. for instance, vietnam ordered french exocet anti-ship missiles and dutch sigma frigates. meanwhile, the philippines acquires light-arm helicopters from france and italy. the "european arms embargo on china" refers to the stringent limitations on the shipment of weapons to china enforced by various european export control laws. when the developing military technology collaboration between france, britain, and japan is considered, it appears that europe has little impact on the distribution of military power in asia. however, its influence must continue to be seen as a counterweight to china's military might. overall, it is important to note that diplomatic support from europe for measures grounded on international law. despite the us navy's adherence to unclos regulations, the us has not ratified the convention, which is a diplomatic liability in the south china sea33. despite its inability to exert sufficient leadership to defend the unclos-based international maritime order, europe continues to use it as its principal framework when deciding on policy in the south china sea. whether certain south china sea operations represent a legal challenge to the system that governs the seas will be made clear by the permanent court of arbitration's ruling. it will also address whether europe's desire to support a global order based on norms and rules is consistent and coherent. 7. india in principle, india promotes freedom of navigation campaigns, including freedom of navigation in the south china sea area. so it seems strange lately that india has been a little quiet about the dynamics in the south china sea. new delhi, however, remains acutely aware of its official position on impartiality in disputes. officials in india say that china's actions in 32 paul saurette, the kantian imperative, humuliation, common sense, politics. university of toronto press. (2005). 33 mclaughlin, “u.s. strategy in the south china sea perspective.” american security project. (2020). non-claimants states … rusmuliadi 12 east china and south china seas are arbitrary and unreasonable. the indian strategist also said that if a negotiated solution to the dispute in the south china sea cannot be reached, continued pressure should be exerted on china, given china's aggressiveness34. for this reason, india supports and participates in us naval patrols in the region. indian leaders have stressed the need for freedom of navigation, the right to passage and overflight, and the peaceful resolution of disputes under the unclos. there were two concurrent events in november 2015: the thirteenth asean-india summit and a public speech in singapore. prime minister narendra modi brought up the south china sea issue as he advocated for measures to improve maritime security, anti-piracy efforts, and disaster relief. however, according to numerous reports, india harassed china during the third india-philippines meeting35. joint commission for bilateral cooperation in new delhi in october, when a joint statement used the name "west philippine sea," which beijing objects to, to allude to the south china sea. economically, india is interested in the south china sea in oil exploitation projects. in october 2011, the vietnamese government granted the indian state oil company ongc videsh the right to drill for oil in the waters of the south china sea36. however, china did not remain silent, and they criticized this decision. through a spokesman for the chinese ministry of foreign affairs, hong lei said, "china opposes all forms of gas and oil exploitation in the disputed south china sea area. this act is a form of disrespect for china's sovereignty". on the other hand, about 40 percent of india's trade volume passes through the indian ocean and the south china sea. therefore any conflict that occurs in that region will impact indian trade. in order to strengthen its security presence in the western pacific, india needs to increase its marine deployments in the south china sea. the indian navy has engaged in intense operational exchanges with the american navy. by allowing japan to take part in the most recent version of exercise malabar in october, we are increasing its complexity. four indian naval ships completed a two-month tour of southeast asia in june, and in november, the stealth frigate ins sahyadri was dispatched to the philippines for operational deployment. additionally, india expands its military partnerships with asean members vietnam, malaysia, myanmar, and thailand. it is even rumored to be discussing the possibility of exporting the brahmos supersonic cruise missile to vietnam as a strategic hedge against china37. new delhi is increasingly showing concern over the deteriorating security relationship in asia-pacific. india and the united states urge all southeast asian countries to avoid military confrontation and resolve territorial and maritime disputes through peaceful means. both of these states generally agree that china's goal in the indian ocean is to support its maritime interests in the pacific. however, indian analysts argue that china's reclamation efforts in the south china sea are a precursor to more significant power projections into the bay of bengal38. indian security agencies were rocked by reports in 2015 that chinese ships were cruising closer to the andaman islands. indian analysts worry that increased chinese maritime activity near the andaman and nicobar islands is in response to us marine patrols in the south china sea, as the pla navy looks to increase the scope of its operational presence there. ironically, on the congested pacific coast, it employs the same strategies as the us navy39. the indian navy's approach to dealing with a foreign military presence close to the andaman and nicobar islands is influenced by the legality of coastal patrols in the south china sea. without legal 34 abhijit singh, “india’s strategic stakes in the south china sea,” asia policy 21, no. 1 (2016), pp. 14–20. doi: https://doi.org/10.1353/asp.2016.0005. 35 ibid. 36 ibid. 37 buszynski and son, “the south china sea: from a regional maritime dispute to geo-strategic competition.” 38 permanent court et al., “13 july , 2016" asean regional experts on the south china sea ruling – stress long term risks , including australian overreaction” (2016), p. 18. 39 ibid. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 13 recognition as "islands," new delhi contends, they cannot stop foreign ships from gaining access to these waterways. india's short-term strategic preference is for china to tone down its aggression and quit attempting to change the south china sea's status quo on its own. the cessation of reclamation efforts as well as rigorous marine patrols. china and other claimants must adhere to the 2002 declaration on the conduct of parties in the south china sea and refrain from using military terminology in order for territorial disputes to be settled peacefully and in accordance with international law40. in order to negotiate a binding agreement to govern maritime conduct in the south china sea, all parties must act sincere. long term, more stable forces across the indopacific strategic system will balance india's interest in enhancing the maritime operating capabilities of southeast asian nations, resulting in greater excellent stability and predictability in the indian ocean41. india understands the necessity of cooperating with the us, japan, and australia on the larger asian coast in order to secure its leverage over china's fast growing naval presence. c. conclusion in conclusion, the dispute in the south china sea involves not only neighboring countries who feel that their maritime borders have been violated but also countries that do not claim the south china sea area. the existence of non-claimant countries in the south china sea region further adds to the complexity of the problems in the region. basically, the leading spirit brought by non-claimant countries is the spirit of freedom of navigation based on unclos. all countries do not want certain restrictions in international waters that can disrupt the stability of trade mobilization between countries, which can also disrupt security stability which will certainly disrupt the economy of countries that use these routes as shipping routes for goods or trade commodities of high economic value. the biggest concern for non-claimant countries if china fully controls the south china sea is that it will limit the space for transport ships from each country with interests in that route. every country that goes through this route must comply with china's rules. if a party does not want to follow it, china will easily stop the trade flow of the country that is subject to sanctions. from a political point of view, if countries are contrary to the will of china's policies, it will be difficult for the south china sea trade route. furthermore, the most important thing is that the border of the south china sea region with the nine-dash line doctrine is unknown in unclos and will cause new problems if accepted. references atriandi, ristian supriyanto, out of its comfort zone: indonesia and the south china sea. asia policy, number 21. (2016) pp. 21-28. aziz, saidatul nadia abd, and salawati mat basir. “south china sea: asean mechanism on maritime disputes and the rise of indo-pacific region.” the journal of territorial and maritime studies 9, no. 2 (2022): pp. 65–82. bronson, percival, “u.s. perspectives on the south china sea,” s. rajaratnam school of international studies report (2014). buszynski, leszek and thanh, do hai, “the south china sea: from a regional maritime dispute to geo-strategic competition.” routledge. (2020). 40 shyam, “extended maritime jurisdiction and its impact on south asia.” 41 forbes, the limits of maritime jurisdiction, vol. 12, (2016), p. 253. non-claimants states … rusmuliadi 14 clare, angela. asean and the south china sea, australia foreign affairs, defence and security. (2021). cruz, renato de castro, china and japan in maritime southeast asia: extending their geostrategic rivalry by competing for friends. philippine political science journal (2013). dieter-hans, evers, “understanding the south china sea: an explorative cultural analysis.” journal of asia-pacific studies. (2014). duchâtel, mathieu, “europe and maritime security in the south china sea: beyond principled statements?,” asia policy 21, no. 1 (2016), pp. 54–58. granados, ulises, “india’s approaches to the south china sea: priorities and balances.” australian national university. (2018). hayton, bill. how to solve the south china sea disputes iseas – yusof ishak institute. issue no. 25 (2022). _________, the invention of china, yale university press new haven and london. (2020) koda, yoji, “japan’s perceptions of and interests in the south china sea,” asia policy 21, no. 1 (2016), pp. 29–35. _________, “japan’s perspectives on u.s. policy toward the south china sea,” perspectives on the south china sea: diplomatic, legal, and security dimensions of the dispute, no. september (2014), pp. 82–95. ma, tiffany and wills, michael, “raising the stakes: the interests of non-claimant states in the south china sea disputes,” asia policy 21, no. 1 (2016), pp. 2–5. mcdevitt, “the south china sea: assessing u.s. policy and options for the future.” a cna occasional paper. 2014. pp. 1-92. mclaughlin, “u.s. strategy in the south china sea perspective.” american security project. (2020). medcalf, rory “rules, balance, and lifelines: an australian perspective on the south china sea,” asia policy 21, no. 1 (2016), pp. 6–13. raymond, mark, and david a. welch. "what’s really going on in the south china sea?" sage: journal of current southeast asian affairs, vol. 41(2) (2022): pp. 214–239. renato cruz de castro, “china and japan in maritime southeast asia: extending their geostrategic rivalry by competing for friends,” philippine political science journal: taylor & francis, (2013). singh, abhijit, “india’s strategic stakes in the south china sea,” asia policy 21, no. 1 (2016), pp. 14–20. storey, ian “britain , brexit , and the south china sea disputes,” maritime awareness project analysis (2020). u.s.-china strategic competition in south and east china seas: background and issues for congress”, congressional research service, october 6, 2021. https://sgp.fas.org/crs/row/r42784.pdf. united states department of state bureau of oceans and international environmental and scientific affairs, limits in the seas no. 141, indonesia archipelagic and other maritime claims and boundaries. office of ocean and polar affairs bureau of oceans and international environmental and scientific affairs u.s. department of state. (2014). 9 legal state of doctors without borders (médecins sans frontières) in the international law nooshin bagherani1, abdolkarim shaheydar2 , bruce r. smoller3, hossein ale kajbaf4 1 payame noor university, iran, e-mail: nooshinbagherani@yahoo.com 2 payame noor university, iran, e-mail: ashaheydar@yahoo.com 3 university of rochester, usa, e-mail: bsmoller@me.com 4 payame noor university, iran, e-mail: hossein_alekajbaf@yahoo.com submitted: feb 10, 2022; reviewed: jun 11, 2022; accepted: jun 30, 2022 article info abstract keywords: médecins sans frontières, doctors without borders, legal status, international law. doi: 10.25041/lajil.v3i2.2525 médecins sans frontières (msf) is a non-profit organization that offers health and medical services to people based on their requirements irrespective of race, gender, beliefs, religion, and political origins. physicians, as the msf's most important members, assist people in their greatest need. they provide services ranging from consultations, vaccinations, and primary care to the most complex surgeries. given that the doctors in the organization are very active members of the msf and understand the risk of their presence in dangerous regions with prevalent epidemic and contagious diseases or under distress, insecurity, and war in underdeveloped or third world countries, research into the legal status of this selfgiving and venture group of the international society is critical. the legal status of humanitarian aid workers such as the physicians in doctors without borders in international law has not been studied and recognized. this is due to the absence of a complete definition of “humanitarian aid workers” in international humanitarian law. furthermore, the issue of the status of humanitarian ngos in international law is novel. therefore, studying the legal status of the humanitarian aid workers is an essential case because they are exposed to many potential risks in facing armed conflicts. this research planned a web-based survey as part of our study to find articles, books, reports, or studies in relationship with national and international humanitarian organizations and workers, ngos, and the legal status of these organizations and their workers. we did normative legal research using secondary data from volume 4 number 1, january-june 2022: pp. 9-26. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil legal state of doctors … nooshin, abdolkarim, bruce r., hossein 10 the internet, references, etc. while the operation of the msf is mainly aimed at supporting the survival and recovery of people within a war or disease outbreakafflicted country, its efforts put the lives of its personnel at risk. herein, we will investigate how the msf can adequately support its primary staff, the physicians. we can get the response to this question by studying the legal status of the doctors without borders in international law. a. introduction humanitarian activities have been one of the most challengeable issues in the international society for many years (1). however, given progressively-increased prevalence of illnesses, malnutrition, extrajudicial performances and tortures, harassment and forcible displacement of people for ethnical or religious causes, international and national armed conflicts, etc., the role of these activities in meeting the essential needs of people has become highlighted. evidence of their significance is seen in the fact that global aid expended by governments and private actors in this field has showed an increase by 400% from 2000 to 2014 (2). the international humanitarian system is a large financial and human resource which, based on statistical estimation in 2014, consisted of 4,480 aid organizations, over $25 billion expenditure, and 450,000 aid workers (3). within this system, the médecins sans frontières (msf) or the doctors without borders is an international non-governmental organization (ngo) that provides medical and humanitarian activities in war-torn, underdeveloped or developing countries afflicted by epidemics or endemic diseases, natural disasters and lack of access to healthcare systems (4-6). this organization is one of the five biggest aid organizations in the world and which spends 31-38% of ngos’ budget, altogether (3, 7). among this group, the msf is the only one which works specifically in the field of health (7). following the biafra secession (5, 15) (1967–1970), in 1971 the msf was founded in paris by a team of french doctors and journalists who wanted to expand health care accessibility beyond national boundaries (4). from its beginning, this organization showed some conflicted relationships with other aid organizations such as united nations’ agencies, the military services, and the red cross committee. the position of the msf has changed over time in response to the international context and needs (7). the msf was awarded the nobel peace prize in 1999 (6, 8). the msf is a non-profit organization which offers health and medical services to people based on their requirements irrespective of their race, gender, belief, religion and political origin (5, 9). independence, neutrality, impartiality and witness are the most important principles of this organization (5, 8). the principles of this organization were defined in its founding charter (legend-1). doctors, nurses and other medical and health professionals, logistical teams, and water and sanitation engineers comprise most of its personnel (4). the msf offers assistances ranging from basic healthcare to higher-level services among which the most important ones include surgical procedures, fighting epidemics, providing vaccination services, offering rehabilitation, running hospitals, operating medical clinics and nutrition centers, offering mental healthcare, supplying safe drinking water, setting up sanitation systems and giving humanitarian aids (5). regarding funding, the policy of the msf is based on receiving only marginal financial support from governments and intergovernmental organizations (5). on the other hand, communication with governments is necessary for this organization to maximize the quality of the services offered (8). approximately 90% of the organization's funding is provided by private donors, and the rest is given by corporate donations (4). the united nations high commissioner for refugees has considered funds for lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 11 the msf and has attracted its assistance in refugee camps (7). annual budget of the msf is estimated about us$1.63 billion (4). about 90% of msf workers are from the host countries, while the remainder are from international expatriots. the terms “médecins sans frontières” and “doctors without borders” are misnomers because only 25-35% of its staff are physicians (6). physicians, as the most important members of the msf, help people in greatest need. they offer their activities ranging from consultation, vaccination and basic healthcare to the most complicated surgeries (5). in recent years, the environment where the humanitarian organizations like the msf work has drastically changed (2, 10). most of these new environments, which mostly are civil wars, are situations in which there is disregard for rules, and involve belligerents who cannot comprehend the situation (10). for these reasons, understanding the activity field of the doctors without borders as very active members of the msf, and understanding the risks of their presence in dangerous regions with prevalent epidemic and contagious diseases, or under distress, insecurity and war in underdeveloped or third world countries, study about the legal status of this self-giving group of is very important. particularly, with the worsening of the status of civil wars, the role of the doctors without borders has been highlighted. the legal status of the doctors without borders in international law hasn’t yet been studied already; hence, herein we decided to investigate in this regard. before speaking about this issue, to clarify the topic, we shall study about the place of the msf in the chart of international organizations through which we can understand the place and role of the doctors without borders in the international law. while the operation of msf is mainly aimed at supporting the survival and recovery of people of waror disease outbreak-afflicted countries, it puts the lives of its personnel at risk. herein, we investigate how msf can support its main staff, the doctors without borders. we can develop a response to this question by studying the legal status of the doctors without borders in international law. we planned a web-based survey as part of our study for finding articles, books, reports or studies in relationship with national and international humanitarian organizations and workers, ngos, legal status of these organizations and their workers. we did normative legal research by using the secondary data from internet, references, etc. to be clear, throughout this manuscript, the term “doctors without borders” refers to the volunteer physicians as workers of the msf, while the term “médecins sans frontières” or msf refers to the relevant organization. herein, we have considered the doctors without borders as individuals, separated from the msf, and outlined their legal status in the international law. b. discussion 1. place of the organization “médecins sans frontières” in the chart of international organizations international organizations are defined as organizations with international presence, membership, or field of activity. they are divided in two main groups including international non-governmental organizations (ingos) and intergovernmental or international governmental organizations (igos) (11, 12). in another classification, ngos are divided into local ngos and international ngos (13). other class of organizations are non-profit organizations. as definition, these organizations are ones which don’t use their assets, income or profits to any individuals such as founders, directors, officers, members, employees, donors, their family members or relatives, etc., except for pursuing stated objectives (14). legend-2 provides a list of international organizations based in geneva, switzerland (15). in sum, according to the information acquired from website of the msf, the chart of organizations based in geneva, and other references, the msf is classified within the group of non-profit, non-governmental organizations (4, 5, 11, 15). our knowledge about the placement of the msf within the chart of international organizations can help us in clarifying and defining the legal status of this legal state of doctors … nooshin, abdolkarim, bruce r., hossein 12 organization and its members. on the other hand, through the comparison of the msf with other national and international organizations with the similar, relevant scope of interest, we may be able to understand better the legal situation of this organization and its members in the international community. one of these international organizations which has some shared scope with the msf is the icrc. since the early 1990s, the organizations of msf and icrc have mostly closely collaborated with each other, particularly in war-afflicted regions. these two organizations have similarities in terms of their origins, their fund, and neutrality in facing political interests. regarding the field of activities, while the main aim of the msf is based on offering medical cares, the icrc has many other aspects. additionally, the structure of the msf organization differs from that of the icrc. hence, comparison of these two organizations can be difficult. on the other hand, the activity of the msf in war-torn zones is approximately 3 times more prevalent than that of icrc and this supports the significance of the role of the msf. in his article entitled “médecins sans frontières and the international committee of the red cross: matters of principle”, dr. rony brauman (the president of the msf in 1982-1994) compared these two international organizations. he explained that the formation of the msf prevented repeating the mistakes made by the icrc in world war ii regarding genocide because of its culture of silence (8). although the msf obeys the principles of neutrality and impartiality in their interactions with governments, it appears as witness and speaks out and stands up for victims against their executioners (5, 8). this policy puts its members in worse, riskier and more dangerous situations compared with icrc workers. this is another fact that makes the msf more invaluable than the icrc in the international society (8). we should notice to this point in evaluating the legal status of the doctors without borders as very active members of the msf. 2. law on non-governmental organizations the issue of legal study of ngos is not new, though these organizations have recently received increasing attention of scholars of the fields of international law and international relations (12). summarily, ngos such as msf have no defined international status as a subject in international law (1). however, these organizations should be regulated by international law because of the following reasons: a. preservation of international general interest toward these organizations (12) b. effectuation of the formation and activation of these organizations (12): international immunities and privileges are necessary for protecting and facilitating international activities by the ngos (1). c. preservation of independence (12): this presents an opportunity in which no single state is able to interact with the scope and activities of these organizations and would be guaranteed by international law (12). for ngos, having a legal standing is a mainstay in recognizing their rights and immunities and standing before courts. their legal personality is accounted for in municipal law, but not in international law (12). in contrast, the formation of ngos is an appropriate way for assigning judicial persons under private international law. the common characteristics of these organizations are their non-governmental structure and their non-profit goals (9). concerning humanitarian ngos, it is said that international agreements between these organizations and the state in which armed conflicts are happening and/or international agreements between these organizations and insurrectional or liberation movements dictate the rights and tasks of humanitarian aid workers. hence, considering some recommendations for optimizing good and secure conditions in these agreements for the humanitarian aid workers would enable us to propose suitable situations for them (2). the ministry of economy of every country is the body responsible for registration, supervision and coordination of either domestic, lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 13 foreign or international ngos in each respective country. all of these organizations must observe provisions of the constitution (14) and other applicable legislation of the relevant country while performing their activities and pursuing their objectives (9, 14). the assets of ngos must be expended solely in the way of non-profit objectives (14). these notes can be generalized to the msf. ngos can establish branch offices in other provinces of a given country. all of these branches must observe the law of the central office (14). ngos can be established for limited or unlimited time duration. their objectives and activities must be transparent and clear and should be stated in their statute. in order to achieve public trust, these organizations must justify spending money for salaries to employees, renting working and housing places, and other logical performances. they must have their own name, logo, symbol, and address (14). to expand, improve or change the activities and objectives, ngos must prepare a working plan to attain confirmation by the high evaluation commission. coordination and cooperation of three or more ngos with relevant governmental agencies necessitates the formation of a coordinating organization that receives confirmation by the high evaluation commission. this commission is comprised of authorized representatives from the ministry of economics, ministry of foreign affairs, ministry of finance, ministry of justice, and ministry of labor and social affairs (14). to carry out their activities in pursuing their objectives, international ngos register volunteer members. the presidents, vice presidents, ministers, deputy ministers, chair-persons and the members of the national council, the chief justices and members of the supreme court, heads of independent commissions, members of the leading body of the attorney general, heads of independent governmental departments, and heads of political parties are forbidden to found or join ngos (14). the sources of funding for ngos include donations, gifts, grants, legacies, bequests, registration fees, movable and immovable properties, and income from legal economic activities (14). according to the article 71 of the un charter, the un economic and social council can grant consultative status by ngos (12, 16). this article has also influenced institutional developments in other international organizations and highlighted the role of ngos in the international decision-making processes (16). ngos must save financial records and audit its annual statements to the ministry of economy, ministry of finance, and donor agencies. they are exempt from any kind of tax and customs duty in relationship with any nonprofit and charitable performance (14). the following activities are prohibited and illegal for the ngos. these can be generalized to the msf as a non-governmental body: a) political activities and holding political campaigns b) expending or fundraising in the way of political objectives c) promoting violence, taking part in military services and military educational programs d) production and transferring weapons e) supporting terrorism f) production and importing narcotic agents g) expending financial resources against national and religion willingness h) taking part in construction projects, with the exception of cases under permission of minister of economy at response to request of the chief of the diplomatic agency of the donor country i) commercial activities (import and export) j) other illegal activities (14) 3. place of doctors without borders among international workers doctors without borders are classified in the group of international workers, as opposed to national workers. international workers consist of staff who do not belong to the country in legal state of doctors … nooshin, abdolkarim, bruce r., hossein 14 which they work. they are made up of a variety of nationalities belonging to neighboring or distant countries. all international staff are employed under the same conditions and terms of employment. in contrast, national humanitarian staff include paid personnel who work in national and international organizations within their home countries. they are employed under different terms and conditions of employment (17). on the other hand, the doctors without borders are classified as humanitarian aid workers, who provide aid to support survival and recovery in many crises secondary to contagious infectious disorders’ outbreaks or war. this presents the opportunity for conflicts and complications between the role of the doctors without borders and that of other aid workers in the field of offering health services. the latter is related to their common role in providing relief situations for people who need them. the msf has provided a wide range of career opportunities ranging from a single mission to a long term career. programs of ongoing professional development have been established by this organization for field workers. these programs provide opportunities for advancing skills and knowledge required for working in the field. these educational programs include training in language, medical protocols, management of critical events, etc. hence, this organization trains professional persons for responding to urgent and critical situations all over the world and helping people who need medical and support care (18). although the majority of ngos provide first-line humanitarian aid within their own scope, just five organizations (3, 7) which consist of 0.1% of humanitarian ngos worldwide (3), represent approximately 31-38 % of ngo humanitarian expenditures (3, 7). in order of the level of expenditure, these organizations include the msf, save the children, oxfam, and world vision and international rescue committee (3). among these organizations, the msf is the only one which specifically works on health (7). this fact shows the significance of the msf among other humanitarian organizations. doctors without borders often work in complicated and insecure conditions, some of which are inherent to humanitarian activities. most of them don’t benefit from support under the international laws (19). in the following, we have listed some of the most important conditions that have put doctors without borders into risky and dangerous situations and made their jobs most complicated and hazardous: a) serious violation of human rights and international humanitarian law (2) b) targeting the civilians in modern wars (20) c) in most of combats, there is no clarity in situations in fight zone d) trend toward radicalization and polarization (10) e) expansion of armed conflict civil wars around the globe (2, 10, 20) f) globalization phenomenon and its consequent deregulation which lead to appearance and increased scope of non-state armed groups (10, 20) g) appearance of failed states which have lost their central government having authorities for providing basic services for people’s well-being h) formation of global fight against the terrorism phenomenon (10) i) difficulty in access to armed conflict zones (2, 10, 20) j) increased risk of misused or rejected humanitarian services (10) k) increased threat against workers of humanitarian organizations (2, 10, 20) l) ignorance of governments and the world health organization to alarms announced by the msf or other humanitarian organizations regarding the risk of contagious disease spreading, resulting in threatening the life of humanitarian aid workers (3) it is within such situations that msf does most of its work. furthermore, in most war zones, we can’t rely on a great degree of willingness to execute international humanitarian laws. these lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 15 conditions highlight the hazardous role of doctors without borders in providing humanitarian services and necessitate a study on the legal state of these workers in international law. to highlight these points, we cite a thoughtful description of the increase of adverse events toward humanitarian aid workers during one year, from 2012 to 2013. according to a documented report, in 2013 about 155 humanitarian aid workers were killed, 178 were seriously wounded and 141 were kidnapped, throughout the world, while in 2012, these statistics were estimated 70, 115, and 92, respectively (20). most of these events in 2013 occurred in afghanistan, syria, south sudan, pakistan, and sudan, in decreasing order (20-22). most of these victims were workers of national ngos and red cross/ crescent committee working in the service of international aid (21). in addition to the mentioned statements, studies have shown inadequacy of security sources for international humanitarian aid workers in spite of emphasizing on their importance by international organizations (17). 4. person’s own security according to data regarding the security status of humanitarian aid workers that have systemically been collected in 1990s, a steady growth is seen in the rate of security risks (20, 27). because of their occupational situations, the doctors without borders face dangerous environments that put them into insecure conditions. we list some of the most important ones: a) formation of a verity of political and economic groups or powers which have different benefits or harms from current combats b) appearance of states without central government capable for saving law and order c) lack of access to raw materials resulting in sever struggles d) increased growth rate of poverty and social distress in the context of collapsed states resulting in formation of inter ethnical combats e) unprecedented levels of terrorism phenomenon and its hazardous consequences for innocent people f) appearance of wars as consequence of a given war resulting in complexity of situations accompanying with disregard to the international warfare rules g) enhanced erosion in distinction between combatants and civilians in international humanitarian law h) ignorance and disregard to international humanitarian law by non-governmental armed protagonists (10) the aforementioned points result in devaluation of international humanitarian laws and place workers of humanitarian organizations including the doctors without borders at increased security risk. hence, providing individual personal security for workers of humanitarian organizations can help them to perform their jobs in the best way. herein, we want to analyze the legal status of the doctors without borders in the field personal security in international law. in this respect, we must study the issue in different directions and respond to the following queries: 1what is the definition of personal security in the international law? 2do the doctors without borders have the right of personal security? if yes, who or which authorities are responsible for providing and supporting this right? 3how will the legal situation of the doctors without borders be, if their personal security is threatened or disturbed by combat parties? 4what would the reference authorities for making decision regarding recognizing guilty party and determining fine? 5is there any conflict between giving the right of personal security to the doctors without borders and the scope and policy of the msf in terms of activity, independency, impartiality and neutrality? legal state of doctors … nooshin, abdolkarim, bruce r., hossein 16 by answering these questions, we can get clarity with regards to the legal status of the doctors without borders in international law; then we would be able to respond to any query or to clarify any obscure point we may face in this way. the “person’s own security” is one of the basic rights of human beings, guaranteed by universal declaration of human rights which, in 1948 was initially adopted by the united nations. by definition, this term is associated with liberty, banning of torture, cruel and unlawful punishment and includes the right of the remedy of habeas corpus when this security is threatened illegally (28). the geneva conventions and their additional protocols delineated the right of security for civilians (1, 2). regarding this, differentiation of civilians and combatants is necessary. it seems that wearing war-specific uniforms is the distinction factor for recognizing combatants from noncombatants. this principle is a mainstay in the international humanitarian law (1). “threat “and “risk” are terms which are used closely with “security”. by definition, “threat” consists of factors which have a potential for causing harm, loss, and damage to organizations’ assets, personnel and activities. “risk” is defined as a combination of impact and likelihood of harm, loss, and damage to organizations’ assets, personnel and activities, secondary to exposure to a threat (23). the context in which humanitarian workers are working can determine their perception of the type and severity of threats and dangers. for instance, in iraq, afghanistan and pakistan, suicide bombings and kidnappings constitute the largest threats, while in democratic republic of congo, chad and sudan, common crimes and car-jacking, and in occupied palestinian territories and sri lanka, armed conflicts and collateral violence are prevalent. additionally, in their survey, stoddard et al showed that in comparison with national staff, international counterparts overestimate the severity of insecurity. it seems that duration of activity and access to a local frame of reference for reporting insecure conditions are effective in reconciling these discrepancies; longstanding national workers work in their positions in their home country can easily report cases of insecurities to local references. although, this survey didn’t reveal statistically significant differences between males and females in this regard, we can’t ignore the importance of gender in some countries such as pakistan, somalia and afghanistan, in which females are exposed to more risk because of local cultural norms (17). hence, regarding the aforementioned statements, the doctors without borders face a variety of insecurities and dangers with a different range of severity based on their operational environment. there is no way to discuss that security is a vital right for all of ngos’ staff including the doctors without borders (23). the rules for supporting the security of the doctors without borders are widely scattered. what is clear is that the doctors without borders should not be considered as military targets and should not be attacked (2). although support of the right of security cannot be guaranteed absolutely, to achieve relatively high levels of security for the aid staff, threats and risks can be identified and assessed in a standardized way. the security risk management setting gives a practical method to identify and analyze the issues surrounding security for achieving the best way for mitigating risks (23). the question arises as to whether msf is responsible for offering the right of person’s own security for the doctors without borders or is this right to be provided by other resource(s)? in order to answer this question, we primarily see the msf as a ngo and refer to studies and works that have been done in the field of security management for ngos. today, some organizations are attempting to state their responsibilities, obligations and limitations in providing security for their staff (17). regardless of factors effective in security risks, humanitarian organizations are legally and ethically responsible to protect security of their staff, particularly ones in the field (20). summarily, it seems that organizations are responsible for offering person’s own security to staff. for instance, the untied nation (un) has an detailed approach for providing security for their staff through the united nation’s security management system. as another example, one international organization in south lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 17 africa spends about $ 26,000 to provide security measures for every international worker in very dangerous zones. ngos provide the security budget from financial profits acquired from their bilateral programs or from project grants, predominantly (17). in the “law on nongovernmental organizations” which has been prepared for domestic and foreign ngos in afghanistan, ngos have been described as responsible bodies for providing personnel with safe working environment in performing their activities and projects (14). this fact is true for the msf, too. although it is expected that humanitarian organizations assume the responsibility in preparing security for all of their workers in the same way, disparities have been seen within and among humanitarian agencies in this field. individual attributes and status of workers such as nationality, gender and organization affiliation play a great role in these disparities (20). the following list itemizes some of the most important points of these disparities: disparities between national and international workers: generally, international workers in comparison with national workers are in the better situations in terms of security training, security measures and resources. although international workers make up approximately less than 10% of humanitarian aid workers, in comparison with national workers, they are exposed to more attacks. for instance, in 2014, 13% of attacks were against them. the trend of international workers having higher living standards, emergency evacuation in cases of dangerous threats, and so on can justify this disparity (20). on the other hand, because of the higher proportion of national workers among the humanitarian aid workers in the field (more than 90%), they make up more cases of victims of serious security threats. for instance, in 2013, 87% of attacks affected national workers. additionally, because of reasons such as financial factors, expulsion of international staff by host states, evacuation of international workers from dangerous zones, etc., national workers have been the main workforce in humanitarian organizations (20). all of these are reasons that altogether can justify differences between national and international staff in getting security measures. it should be noted that national workers are more familiar with local context, can move more freely and have more connection to local networks of protection mechanisms via communal, familial or tribal communications. it seems that because of the latter points, organizations have under-estimated serious security threats toward international workers and under-prioritized their security issue (20). disparities secondary to gender: generally, information in terms of the proportion of victimized men and women and kinds of security threats and risks regarding the gender are not conclusive. for instance, gender-related information is not available for about 56% of victims reported by the humanitarian outcomes’ aid worker security database. according to different studies, it appears that the kind of security risks toward men and women is gender-related because of difference between men and women in the context where they are working, and in the kind of humanitarian services which are offered by them. men, in comparison with women, have greater impact on decision-making operations and work more in the field. given the documented reports, men are vulnerable to violent confrontation, being injured or killed, and vehicle accidents on the road, particularly in mostly rural areas; while women are vulnerable to petty crimes (such as burglary and theft), sexual assault or harassment, especially mostly in urban areas, places of their work and residence (20). disparities enforced by law: the international laws itself enforces disparities among humanitarian aid workers of different organizations. it said that the personnel of the united legal state of doctors … nooshin, abdolkarim, bruce r., hossein 18 nations and red cross/ crescent committee are in the superior position in term of security in comparison with other humanitarian aid organizations. in addition, differences among organizations regarding operating places, kind of activities, type of security strategies, and organizational trends toward doing dangerous risks dictate different security regimens for their staff. hence, humanitarian aid workers’ organizational affiliation is important for appropriate legal regimens that offer security mechanisms (20). in a paper written by the interaction security unit, the host government has been stated as the main responsible authority for the safety and security management of ngo staff. this responsibility rests with all governmental managers in all levels, not only with security focal points. in an interaction between security focal points and management officials, technical security inputs and advice are offered by the former, while decisions on security management are made by the latter (23). the role of military forces dispatched to a foreign country in protecting humanitarian aid workers from epidemics, famine, oppression, massacre, etc. is controversial. in the 1990s, application of military forces in rescuing populations from dangerous situations was investigated under the topic “right or duty to intervene” which was replaced by “responsibility to protect” in 2001. in addition to military forces, humanitarian organizations also invoke the “responsibility to protect” to deploy foreign troops for protection of civilians and humanitarian aid workers. now, the main question is whether the msf considers the “responsibility to protect” in order to support civilians and the doctors without borders. at present, this organization refuses to pursue the “responsibility to protect” to call for military forces to protect civilians and the doctors without borders because it cannot pronounce upon the legitimacy of the war aims followed by war parties (29). this is a negative point which shall be argued more. both of “speaking loudly” or “being silent” against cruelty of combat parties are highly associated with security of the msf staff, particularly that of doctors without borders who are in close relationship with victims. generally, the protection regimens for the doctors without borders under the humanitarian and international laws are inadequate (2). moreover, the poor relationship between security management setting and human resource professionals within organizations is one of the most important problems in addressing security for staff (17). the doctors without borders must be aware of their security needs and costs specialized in this field. the process of security risk management includes identification and assessment of the operational environment, analysis of security risk and finding a pathway to the solution. this process offers standardized and logical measures for facing all insecure conditions and incorporating their solution paths in ngos’ programs (23). the security risk assessment (sra) is an important part of the security risk management process. it is defined as a tool for determining the factors which threaten the organization’s staff, assets or operations, assessing their impact on organizations, and planning to prioritize the risks and introducing mitigation measures. hence, an impressive sra is a necessary prerequisite for managing risks and providing security effectively. because of changes in security situations following changes in political conditions, operational contexts and so on, the sra should be frequently revised and updated. the assessment of security situations should be interpreted according to the geographical location, operational context and the timeframe. in legend-3, the table for the assessment of risk levels has been stated. this table has been organized by interaction members in the spring 2007sag meeting (23). the security management team consists of persons in charge of the ngo country program and finance that approves the sra and takes responsibility to plan mitigation measures for enhancing security and safety organizations’ staff, assets and activity (23). the msf, as a humanitarian ngo whose personnel are in dangerous and insecure conditions, should organize its security management team in the best way, and consider a budget for assessing and managing security risk and planning mitigation measures. the doctors lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 19 without borders should be aware of their right of having security and safety in their operational environment and inquire of the msf about its program to achieve secure conditions. as recommendations for the doctors without borders in complex security conditions when their security is threatened: 1knowing the security resources and policies: it is expected the doctors without borders know the security resources and policies. as a duty and responsibility, the msf should introduce a comprehensive and detailed list of security resources and policies to which the doctors without borders can refer for answering all of potential queries that may be raised in this issue (17). 2referring to local partners of the msf for getting explicit security support: the msf should be in a close relationship with local partners to assess the security support needs for offering good support services to the doctors without borders (17). it is expected the doctors without borders will refer to the local partners in insecure conditions for getting explicit security support. 3 participation in assessment of security level: the msf should assess the security status of working environments by engaging the staff to report their opinions about this issue (17). it is expected the doctors without borders would participate in this assessment and report their concern of security status. humanitarian organizations play great role in managing security-related strategies. in the following, different operational approaches of these organizations in facing security issues have been summarized. these strategies make up the “security triangle” (20): 1. acceptance: acceptance is a mainstay in strategies of humanitarian security management and which is required for humanitarian access under the international laws and protecting humanitarian aid workers. based on this approach, to remove or decrease threats, a consent for humanitarian organizations’ presence or work shall be gained. this strategy is not a passive one, but an active and dynamic process. as long as humanitarian aid workers are wearing emblems and acting based on humanitarian principles, they are under a protective umbrella with this approach. additionally, states have responsibility to prepare security for humanitarian aid workers and can’t refuse the consent on an arbitrary basis. although this consent establishes a legal basis for humanitarian aid workers to be under the international law, it doesn’t necessarily guarantee security of workers from attacks or acceptance by all of workers (20). 2. protection and deterrence: whenever acceptance-based approaches are insufficient due to progressively increasing security threats, humanitarian organizations employ more ardent security approaches based on protection and deterrence policies. based on protection strategy, instead of mitigating threats themselves, organizations try to prepare safe situations and conditions for their workers by using protective measures and devices, such as security walls, bulletproof vests, armored vehicles, etc. in opposition, according to deterrence-based approaches, humanitarian organizations pose counter-threat performances such as using armed guards, military or diplomatic forces, etc (20). in most aid organizations, national staff have mostly been assigned to leading and coordinating posts in security management settings. in deteriorating security conditions, “remote management” approach would be a better solution. this control consists of international staff withdrawal, leaving security management mostly with national and local staff who are working more with local partner organizations. but in practice, most aid organizations are routinely working in concert with local partner organizations both in secure and insecure conditions (17). using national workers in this field let these organizations get better information and analysis of situations in place. additionally, the policy of choosing national and local staff for legal state of doctors … nooshin, abdolkarim, bruce r., hossein 20 offering security provides other benefits such as decision-making responsibilities for security cases, increased awareness about situations, and better communications with local authorities for controlling distress and insecurity in insecurity cases (17). the inevitable existence of insecurity cases in the working environments of the doctors without borders necessitates a complaint mechanism through which issues of security can be addressed and analyzed. according to the article 37 of the second geneva convention, if medical staff are captured by an enemy, they shall be protected and respected, and be sent back as soon as the commanderin-chief finds it possible under his/her authority. during imprisonment, they will be able to carry out their duties freely (2, 25). it seems that this rule can be true for the doctors without borders. additionally, international agreements between the msf and the state in which armed conflicts are happening and/or international agreements between this organization and insurrectional or liberation movements dictate the rights of security for the doctors without borders in the field. to consider some notes for optimizing security conditions in these agreements for the doctors without borders, suitable situations would be provided for them (2). on the other hand, in recent years security coordination fora such as saving lives together (slt), and context-specific security platforms including anso (afghanistan) and ganso (gaza) have been organized (17). in a discussion of humanitarian security in 2006, slt was presented by the inter-agency standing committee (iasc) as a framework organized for improving security coordination among igos, ngos and un in the context. slt is a revised and updated version of the menu of options for un/ngo/igo security collaboration (moo) which had been introduced by the iasc in 2001 (30). although slt appears efficacious in theory, it hasn’t been successful in practice because bringing all agencies under the umbrella of this framework is not possible (8). as a proposal for removing this problem, ngos can develop a ngo-specific version of the slt framework which offers a guideline for responsibilities, limitations and obligation specific to the related organization (17). the geneva convention and their additional protocols also have considered protections for civilians (1, 25) and humanitarian aid workers (25) which can include the doctors without borders. in addition, the icrc plays great role in preparing secure conditions for civilians (1, 25). whether the protection of the doctors without borders can be supported by the icrc or not is debatable. stoddard et al in their survey concluded that adequacy of available security resources for staff of ngos, including both national and international workers, was rated “fair” to “poor”. in spite of the importance of organizing programs for security training to aid workers and specifying some funds for these programs, deficits are still present in this regard (17). based on this report, we conclude that the doctors without borders aren’t being provided with adequately accessible security resources and this issue again highlights the significance of providing person’s own security for the doctors without borders. good teamwork between those who found and manage ngos and those who are responsible for offering security measures is important to guarantee secure conditions for staff (23). unfortunately, the poor relationship between security management setting and human resource professionals within organizations is one of the most important problems in covering security for staff (17). the doctors without borders should be aware about their security needs and costs specialized in this field. promotion of humanitarian principles of impartiality, independence and neutrality by organizations is effective in providing secure conditions for staffers. studies have shown that two main factors, incompetence of organizations in taking unnecessary risks and lack of lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 21 experience and cultural awareness are the leading causes allowing for increased risk for workers. the lack of respect for humanitarian principles is considered as the third most prevalent cause for putting staffers in unsecure conditions (17). attention to these principles can improve the quality of aid services offered by workers by providing a safe working environment. hence, it seems that msf as a ngo devoted to humanitarian rules, can provide a relatively safe and secure environment for the doctors without borders to work efficaciously in different cultural settings. on the other hand, using a standardized security risk management makes ngos capable to manage their security duties and responsibilities in an effective way and let their staff work in a secure operational environment (23). generally, providing a secure operational environment for the doctors without borders present no conflict with scope of the msf, but also it prepares ideal conditions for this group of doctors to do their job in the best way. while the operation of the msf is mainly aimed at supporting survival and recovery of people of waror disease outbreakafflicted countries, it puts the life of workforce personnel at risk (2). according to the data on security status of humanitarian aid workers which have systemically been collected in 1990s, a steady increase in the rate of security risks has been identified (20). up to now, because of lack of a complete definition of humanitarian aid workers like the doctors without borders in international humanitarian law, their legal status in international law has not been investigated. moreover, the issue of the status of humanitarian ngos in international law is a novel one. therefore, study of the legal status of the humanitarian aid workers is very important because they are exposed to many potential risks in facing armed conflicts (2). according to the aforementioned comments, there is a great gap concerning the status of humanitarian aid workers in humanitarian and international laws (2, 20). the source of laws dictating rights and responsibilities of these workers in the international society are summarized in the following cases: international humanitarian laws: these laws include the four geneva conventions of 1949 and their additional protocols of 1977 which are in association with supporting victims of armed conflicts (2, 25), including people who don’t attend war (civilians, humanitarian aid workers, etc.) or people who can’t take part in war more (wounded, prisoners, etc.). they are a series of international treaties which consist of the most significant rules for restricting savagery of wars. summarily, these conventions and their protocols are the main core of international humanitarian laws which regulate the currency of armed conflicts and limit their effects (25). these laws are able to provide a legal guarantee for protecting only special categories of the humanitarian aid workers, including religious and medical/hospital personnel. hence, this law can be generalized to the doctors without borders (2). international agreements: international agreements between humanitarian ngos, and states in which armed conflicts are happening and/or international agreements between these organizations and insurrectional or liberation movements dictate the rights and tasks of humanitarian aid workers. hence, upon consideration of some recommendations for optimizing good and secure conditions in these agreements for the humanitarian aid workers, we would be able to provide suitable situations for them (2). national or domestic laws: all ngos, in the way of performing their activities and pursuing their objectives, shall observe provisions of the constitution (14) and other applicable legislation of the relevant country (9, 14). the assets of ngos are expended only in the way of non-profit objectives (14). these notes are true about the msf. legal state of doctors … nooshin, abdolkarim, bruce r., hossein 22 based on the previously mentioned notes, it seems that the msf should play a great role in managing security-related strategies by using “security triangle” in facing serious security threats including: acceptance: acceptance shall be mainstay in strategies of humanitarian security management by the msf which is required protecting the doctors without borders. based on this approach, to remove or decrease threats, a consent for the msf’s presence or work shall be gained. additionally, states have responsibility to prepare security for the doctors without borders and can’t refuse the consent on an arbitrary basis. although this consent establishes a legal basis for the doctors without borders to be under the international law, it doesn’t necessarily guarantee security of these workers from attacks (20). protection and deterrence: whenever acceptance-based approaches are insufficient under presence of progressively increasing security threats, the msf shall try harder security approaches based on protection and deterrence policies. based on these approaches, instead of mitigating threats themselves, the msf shall prepare safe situations and conditions for the doctors without borders by using protective measures and devises, and posing counterthreat performances (20). c. conclusion in recent years, security management approaches have been significantly improved for protecting humanitarian aid workers, but more work is needed to improve these workers’ security in facing progressively increasing violence in the world. with inclusion of essential notes regarding optimization of security conditions for the doctors without borders in the agreements between the msf and states in which armed conflicts are happening and/or the agreements between this organization and insurrectional or liberation movements, the right of security for the doctors without borders can be guaranteed. the doctors without borders should be aware of their right for having security and safety in their operational environment and inquire of the msf about its program to achieve secure conditions. to offer security for the doctors without borders, the msf should organize its team of security management in the best way, and consider an appropriate budget for assessing and managing security risk and planning mitigation measures. the legal status of the doctors without borders is not defined in international law. this is due to the lack of a clear definition of these workers or volunteers in the international humanitarian laws including the four geneva conventions of 1949 and their additional protocols. hence, the definition of term “doctors without borders” shall be priority. in addition to international humanitarian laws, international agreements between the msf and relevant states in which armed conflicts are happening, or between the msf and insurrectional or national liberation movements can dictate the rights and responsibilities of the doctors without borders. hence, ideal conditions for activity of the doctors without borders should be considered in these agreements. however, the legal status of the doctors without borders is obscure yet in the international law. therefore, lawyers have great responsibility in clarifying the legal place of these humanitarian aid workers. we believe that the msf can have a great role in improving international law with the objective of protecting the doctors without borders and providing good welfare facilities for them. it is expected that the humanitarian communities such as msf address the gaps in the protection status of their staff in international law and improve their knowledge and practice in protecting their aid workers in complex and insecure situations (20). the disparities in security of humanitarian aid workers and their effects on operational security necessitate a serious degree of attention and great interactions working with lawyers. regarding the mentioned notes, we suggest: 1the term “doctors without borders” shall be defined in the international law. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 23 2the msf is expected to prepare a statute offering security for the doctors without borders and express it to the other international organizations and states. the statute shall consider all of occupational, financial, and economical factors, welfare and security and guarantee them. 3to prepare the mentioned statute, the msf shall invite prestigious and experienced lawyers worldwide, who will develop the best approach for achieving the relevant objectives. 4this statute shall be constructed in a manner that has an operational arm and be able to be dictated to states and other international, governmental and non-governmental 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working group. saving lives together: a framework for improving security arrangements among igos, ngos and un in the field. hosted by ocha – lampung journal of iternational law (lajil) p-issn 2656-6532 volume 4 number 1, january-june 2022 e-issn: 2723-2603 25 conference room “a” (basement level), un secretariat building. amended version, november 2006 legal state of doctors … nooshin, abdolkarim, bruce r., hossein 26 41 transnational smuggling of migrant workers from international law perspective ni nengah adiyaryani 1 , i putu rasmadi arsha putra 2 1 universitas udayana, indonesia, e-mail: nengah_adiyaryani@unud.ac.id 2 universitas udayana, indonesia, e-mail: putu_rasmadi@unud.ac.id submitted: february 09, 2023; reviewed: march 27, 2023; accepted: april 13, 2023 article info abstract keywords: human right international law, migrant worker smugglin, transnational organized crime. doi: 10.25041/lajil.v5i1.2917 migrant worker smuggling is a transnational organized crime that harms countries of origin, transit, and destination countries. the smuggling of migrant workers in southeast asia, from southeast asia and heading to southeast asia is largely due to economic factors that cause the immigration of workers to more economically advanced countries. weak regulations and restrictions on border control and law enforcement also exacerbate this. the scope of this research regards international legal provisions related to migrant worker smuggling as an organized transnational crime and the legal obligations of each country, which becomes the object of migrant worker smuggling against smuggling based on an international legal perspective. this type of research uses a case approach and statutory normative legal research. primary, secondary, and tertiary legal materials were used as legal material, then compiled for analysis to answer legal problems. the results of the research, which are findings related to the legal provisions of migrant worker smuggling as a transnational organized crime, are the united nations conventions ratified by united nations members, one of which is the united nations convention against transnational organized crime (uncatoc). migrant workers are carrying out cooperation capacity building along the smuggling route to sharpen data to obtain a more accurate picture of the situation at home, in the region, and globally. a. introduction the southeast asia mainland is a densely populated area with around 668.61 million people as of january 31, 2023 based on the worldometers report, 1 which has now developed as a stopover as well as a center for cross-border human activities related to massive human movement as well as mobility activities that start from the country of origin and then pass through the transit country, until finally arriving at the destination country. afterward, in 1 “south-eastern asia population,” worldometer, 2023, https://www.worldometers.info/world-population/southeastern-asia-population/. https://www.worldometers.info/world-population/south-eastern-asia-population/ accessed on 29 march 2023 volume 5 number 1, march 2023: pp. 41-58. department of international law, faculty of law, universitas lampung, bandar lampung, indonesia. p-issn: 1978-5186 e-issn: 2723-2603 http://jurnal.fh.unila.ac.id/index.php/lajil transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 42 terms of cross-country activities mentioned, irregular migrants have arisen due to the smuggling of migrant workers. this is a human rights issue whose crimes cross national borders (transnational crimes). the rate of irregular migrants 2 in southeast asia is very high. this is due to the economy, avoiding conflict in the country of origin, recreation or vacation, studying, worshiping, being married, natural disasters, or for other purposes. the flow of irregular migrants is dynamic because a network of smugglers facilitates their movement. the smugglers work in various ways based on the money received by controlling the time, shipping, and facilities for illegal immigrants. in some countries, poor border controls mean that the flow of black immigrants continues to be easy in an age of globalization. people smugglers include intermediaries, illegal immigration senders, or expedition planners who deal with the internet and have a wealth of experience in mastering the complexities of immigration. 3 it is reported that the smuggling of migrants from southeast asia facilitates migrants leaving vietnam for europe to north america, especially myanmar migrants who depart for southwestern south asia. the existence of indonesia, as a country in the southeast asian region, is also an important country for the transit of migrants smuggled by sea to australia. the result of wars, bloody conflicts, and perhaps even genocide in some countries, such as iraq, iran, afghanistan, sri lanka, pakistan, and myanmar, forced some people to seek protection in various countries, including indonesia. they come to indonesia as a transit country before then to australia as a final country. 4 this situation seems to be exacerbated by the geographical conditions of indonesia as an archipelagic country. indonesia has approximately 3000 islands with such geographical conditions, which provides enough opportunities for smuggling to pass through indonesia undetected. 5 picture 1. smuggling routes south asia transiting southeast asia to australia 6 source: global study on smuggling migrants 2018 migrant smuggling routes in the image below are widely documented, usually in southeast asia. australia has been a key destination for irregular migrants and refugees from south asia since the early 2000s. 7 2 there is no universally accepted definition of irregular migration. the international organization for migration (iom) defines it as “movements that occur outside the regulatory norms of sending, transit and receiving countries” (iom, 2011) 3 rahmah daniah and fajar apriani, “kebijakan nasional anti-trafficking dalam migrasi internasional,” jurnal politica dinamika masalah politik dalam negeri dan hubungan internasional 8, no. 2 (2018). doi. 10.22212/jp.v8i2.1140 4 eva johan, “kebijakan indonesia terhadap imigran ilegal dan hubungannya dengan kedaulatan negara,” yuridika 28, no. 1 (2013): 1–12. 5 united nations office on drugs and crime (unodc), “migrant smuggling in asia and the pacific: current trends and challenges volume ii,” united nations office on drugs and crime (unodc) ii, no. july (2018): 69–93. 6 united nations office on drugs and crime (unodc), global study on smuggling of migrants 2018, global study on smuggling of migrants 2018 (austria: united nations publication, 2018), https://doi.org/10.18356/c7955797-en. 7 ibid http://dx.doi.org/10.22212/jp.v8i2.1140 lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 43 the irregular movement of people in southeast asia is increasing due to the facilitation of migrant smugglers. migrant smuggling is the procurement to obtain, either directly or indirectly, financial or other material benefits by the illegal entry of a person into a country of which the person is not a citizen or permanent resident. 8 migrant smuggling is a crime organized by crossing national borders or involving more than one country. irregular migration is the impact of migrant smuggling, which then creates a very real dilemma for the country and sacrifices the migrants themselves to insecurity and vulnerability. the smuggling of migrants within the southeast asian region from southeast asia and heading to southeast asia is largely driven by economic factors such as poverty, debt, and lack of job opportunities, leading to labor immigration to more economically advanced countries. human traffic activities in southeast asia have developed with the implementation of the asean economic community and economic and trade liberalization since 2015. this region increasingly attracts migrants from various countries with an average annual economic growth rate above 5 %. political issues also encourage irregular migration and migrant smuggling. migrant smuggling inside and from southeast asia is also associated with the costs and inefficiency of the immigration work system, so migrant smuggling is chosen as a faster, cheaper, and more efficient way. for example, migrants from cambodia have been charged us$34 to us$138 for smuggling from cambodia to thailand at a far lower cost than immigration institutions costing up to us$700. political factors, insecurity, and loss of citizenship further motivate smuggling from several countries. southeast asia, like many refugees who fled to other countries in the southeast asia region, especially malaysia, thailand, and indonesia, by boarding ships from bangladesh and myanmar. most are ethnic rohingya, a muslim minority often the victim of oppression in myanmar. the occurrence of shipwrecks and starvation were factors that caused the death of most of the refugees. it is not uncommon for refugees to experience torture or beatings onboard ships. the rohingya refugees who travel to malaysia and thailand are shrouded by many possible threats. so many mass graves that number around 200 human graves seem to decorate the border area. 9 many rohingya have fled conflict and human rights abuses in myanmar since 2015, with the majority going to thailand, malaysia, indonesia, and bangladesh by boat or on foot. from august 2017 to march 2018, almost 640,000 unauthorized rohingya migrants crossed the border into bangladesh. the crime of smuggling migrant workers is an organized crime across national borders or transnational. the crime of smuggling indonesian migrant workers has characteristics from other types of transnational organized crime, including involving many countries, both as countries of origin, transit countries, and destination countries, making it very difficult to mitigate broadly and the scope of these profit-oriented crimes. it has a complex nature that makes it easier for smugglers to manipulate and take advantage of the majority of immigrants who are willing to take big risks in seeking a better life in other ways if they cannot access legal migration routes. 10 this situation makes the crime of smuggling migrant workers unopposed by even powerful countries, the united nations convention on transnational organized crime the united nations convention against transnational organized crime 8 nurul miqat et al., “the practice of people smuggling in indonesia: draconian laws for a better life,” international journal of global community 1, no. 2-july (2018): 97–108. 9 stephanie höppner, “3 jalur utama migrasi ilegal yang penuh marabahaya,” dw, 2017, https://www.dw.com/id/3-jalur-utama-migrasi-ilegal-yang-penuh-ancaman-dan-marabahaya/a-41813553. https://www.dw.com/id/3-jalur-utama-migrasi-ilegal-yang-penuh-ancaman-dan-marabahaya/a-41813553 accessed on 29 march 2023 10 transnational crime organised, “smuggling of migrants: the harsh search for a better life,” unodc (united nations office drugs and crime, n.d. https://www.unodc.org/toc/en/crimes/migrant-smuggling.html accessed on 29 march 2023 https://www.dw.com/id/3-jalur-utama-migrasi-ilegal-yang-penuh-ancaman-dan-marabahaya/a-41813553 https://www.unodc.org/toc/en/crimes/migrant-smuggling.html transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 44 (from now on referred to as uncatoc) and its protocol, namely the protocol against the smuggling of migrants by land, sea, and air, supplementing the united nations convention against transnational organized crime (from now on referred to as migrant smuggling protocol) as a manifestation of the commitment to eradicate organized transnational crime through the framework of bilateral, regional or international cooperation. as well as protection against the smuggling of migrants by land, sea, and air, fulfilling the agreement of the united nations against organized transnational crime. 11 however, this convention does not stipulate the definition of serious crimes committed in an organized manner by a group of criminal offenders, which is limited only in a sense: "a group of criminal offenders who commit the organized crime is a group formed in a period with three or more members more with the intent to commit an offense or a serious crime as defined under this convention, to seek financial or another material gain, either directly or indirectly. 12 in 23 article 2 (c), uncatoc provides that structured groups need not have formally assigned roles for their members, continuity of membership, or developed structures. although hierarchical organized criminal groups appear narrow in scope so that they do not reflect the reality of contemporary organized crime, crimes carried out in an organized manner need to be interpreted as serious crimes that can threaten the political sovereignty of a country because the capacity of its activities can undermine the authority and legitimacy of government in a country. the international legal arrangements regarding immigrant smuggling oblige the state to criminalize immigrant smuggling, and the focus of international legal arrangements is the perpetrators of these crimes. however, in prosecuting transnational organized crime perpetrators, the rights attached to the perpetrators must still be considered. one way is not to violate the human rights of the perpetrators of these crimes by considering the "inalienable" nature of human rights, even though their actions have violated the law. based on the background explanation above, it is important to review what are the provisions of international law regarding the smuggling of migrant workers as a transnational organized crime and it is important to know the legal obligations of each country that is part of the smuggling of migrant workers against smugglers based on an international legal perspective. this research is very important because it will reveal the smuggling of migrants from the point of view of the scope of transnational organized crime in terms of international law and human rights principles, where the material regarding the smuggling of migrant workers has not been regulated in the uncatoc, so if this happens, efforts carried out bilaterally between countries with related institutions outside the scope of uncatoc, such as foreign agencies (ministry of foreign affairs, ministry of manpower, and other related ministries) this type of research is normative legal research which, according to i made pasek diantha, examines the rule of law so that the object of research on normative law is the legal norm itself. 13 the author's approach in writing this scientific work is the statutory regulation approach and the case approach. this scientific paper is prepared with sources of applicable norms regarding immigration, smuggling, international conventions, and human rights which are the primary sources of legal material, namely the uncatoc and migrant smuggling protocol. previous research studies, law books, scientific journals, news on the internet, and 11 general assembly resolution 55/25, “protocol to prevent, suppress and punish trafficking in persons especially women and children, supplementing the united nations convention against transnational organized crime,” united nations human rights office of the high commissioner, 2000. https://www.ohchr.org/en/instrumentsmechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons accessed on 29 march 2023 12 tom obokata, “the value of international law in combating transnational organized crime in the asiapacific,” asian journal of international law 7, no. 1 (2017): 39–60, https://doi.org/10.1017/s2044251315000193. 13 i made pasek diantha, metode penelitian hukum normatif dalam yurisdiksi teori hukum jakarta: prenada media group, (2017). p 33 https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 45 newspapers that are relevant to the legal issues that the author raises as secondary legal material. tertiary materials include legal dictionaries and encyclopedias. the novelty of this research is to analyze the crime of transnational migrant smuggling is seen as a serious crime that can harm the original country of the migrant, the country of transit, and the country of the destination, so the crime of state smuggling is seen as a transnational crime which is contrary to the values and principles of universal human rights. every country has the authority to fight against the smuggling of workers, oppose organized transnational crimes, and provide legal protection for the human rights of smuggled migrant workers so that the action that can be taken is to return to the mandate determined by the migrant smuggling protocol and uncatoc to increase the capacity of cooperation along the smuggling route to sharpen data to obtain a more accurate picture of the situation domestically, in the region, and globally which is the basis for doing so. evidence-based treatment. by working together, we can overcome migrant smuggling and eradicate the havens for perpetrators of this organized transnational crime. b. discussion 1. migrant worker smuggling as a form of transnational organized crime organized crime is exclusive. it’s the subject of all its actions for ideological or political reasons, needs expertise in the planning and/or exercising of particular activities or is subject to a secret code. jay s. albanese states, "organized crime is a rationally-created crime to achieve profit through operations outside the law, to sustain the existence of crime by violence, government bribes, threats and/or monitoring of monopolies." 14 organized crime differs principally from other forms of crime in four respects: (1) it is a long-term endeavor, (2) it's rationally planned, (3) it requires force, threats, monopoly, or corruption to escape punishment, and (4) serving the public's need for illegal goods and services. due to major social, political, economic, and technological changes in the last twenty-five years, organized crime has become more complex and dangerous, involving connections between individuals and groups worldwide. therefore, a criminal organization consists of activities related to the above definition but involves two or more countries to complete a criminal conspiracy. 15 table 1. typology of organized crime 16 type of activities nature of activities disadvantage provision of illegal goods, and/or provision of illegal service gambling, debt/lending, sex, drugs, stolen goods the activity is approved; does not involve violence; economically disadvantageous. legitimate business or government infiltration acts of violence committed with the intent to exploit that occur in a legal business or government representative usually not a permitted business; involves threats, violence, or extortion; economically disadvantageous. 14 jay s. albanese, kejahatan terorganisasi (organized crime) akar dan perkembangannya, edisi keen jakarta: prenada media group, (2016). 15 mangai natarajan, kejahatan dan pengadilan internasional bandung: nusa media, (2015). p 23 16 jay s. albanese, op, cit. transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 46 the three categories presented are the model of crime that is said to be "organized criminal activity.". activities categorized as organized crime are activities carried out illegally, such as the supply of illegal goods and/or services and the infiltration of legal businesses. the provision of illegal services is carried out to meet all needs that cannot be carried out by a law-abiding society, such as the need for gambling and free sex. the supply of illegal goods falls into the category of organized crime because these activities offer products obtained through illegal channels. infiltration of legitimate businesses or governments falls into the third category of organized crime because in it, there is an act of extortion of workers who usually use threats or violence to get money to guarantee work or the safety of workers. this is usually done with threats to the employer or workers that if the money is not paid, there will be termination of employment for the workers or violence, strikes and/or destruction that will occur in the company. 17 organized crime can be divided into five categories of offenses according to the typology of crimes as presented in the table. 1.1, conspiracy is the most important characteristic of organized crime because there is always a plan before committing a crime. this aspect of organized crime planning has set it apart from most street crimes. 18 tabel. 1.2 characteristics of organized crime 19 types of organized crime violation handling conspiracy prohibit criminal planning illegal goods: drugs and stolen goods prohibit the ownership and distribution of these goods under certain conditions illegal services: gambling, rentseeking, and sex prohibit the marketing and distribution of this kind of service under certain conditions extortion prohibit the expropriation of property using future threats or danger illegal business involvement prohibit involvement in ongoing criminal conspiracies the provision of illegal services as an act that violates the law is equivalent to the provision of illegal goods. this violation includes the provision of illegal products that the public needs. it is the public's need that allows for the existence of a target market for illicit services. 20 organized crime has undergone various changes along with the emergence of new criminal opportunities. the smuggling of migrant workers as a form of organized transnational crime is emphasized in article 3 of the migrant smuggling protocol, which states that migrant smuggling is an "act to obtain, either directly or indirectly, financial or other material benefits from the entry of a person illegally into the territory of a country in where he is neither a citizen nor a permanent resident of that country.” in other words, migrant smuggling is an organized transnational crime in which the perpetrators facilitate other people's illegal border crossings for profit. those who use smuggling services may be migrants, asylum seekers, and so on. criminals, including cross-border terrorists, also often use the services of migrant smugglers. migrants who are smuggled are not 'victims' of the crime of migrant smuggling, but it is possible that they can also become victims of other crimes during their journey, including serious crimes such as trafficking in persons, assault, and rape. then the production, 17 ibid 18 ibid 19 ibid 20 ibid lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 47 procurement, provision, or possession of fake travel or identity documents to smuggle migrants regulated in article 6(1)(b) of the migrant smuggling protocol, acts of assisting unauthorized individuals in residing illegally within the territory of a country, and carried out intentionally to gain financial or other material benefits regulated in article 6(1)(c) of the migrant smuggling protocol, carrying out activities of organizing, directing, or being involved as an accomplice or trying to commit one of the violations described above is regulated in article 6 (2) the migrant smuggling protocol shows that the act is a legal requirement to be able to carry out criminalization efforts against migrant smuggling following the uncatoc and the migrant smuggling protocol. even the migrant smuggling protocol also obliges the state to adopt laws and other legal actions that are adapted to the legal system in force in that country to provide aggravating circumstances, bearing in mind that acts of migrant smuggling can endanger or have the possibility of endangering the lives or safety of migrants, as well as causing inhumane or degrading treatment, including exploitation is regulated in article 6(3) of the migrant smuggling protocol. the word 'transnational' was first popularized by a well-known international law expert named philip c. jessup. according to jessup, there is another term besides international law, namely transnational law, which is a norm that contains rules regarding all legal actions and events. in the end, jessup's understanding of transnational law was used in the decision of the viii un congress in 1990. it was used in the vienna convention on the prevention and eradication of illegal traffic in narcotics and psychotropics in 1988. un convention in 2000 was the last convention that used the term transnational law, which is defined as a crime with characteristics that include (1) more than two countries; (2) criminal actors or victims are foreigners; (3) exceeding the territorial boundaries of a country. 21 international and transnational crimes are two sorts of violations of law that go beyond the interests of any nation state. international crime, according to bassiouni (1983) and malekian (1991), is an act that is prohibited by international criminal law based on the draft code of 1994, multilateral treaties, or customary practices by all countries. in contrast, bossard (1990) defines transnational or transboundary crimes as occasionally violating the laws of several countries. pass n more abstractly defines transboundary crime and takes legal standards into account. the term "transnational, transnational crime" refers to the "crime that is classed as a crime that threatens interests protected by law by the national competence of two or more nations or at least criminalized by one country. 22 the united nations (un) introduced transnational crime in 1990 internationally as a crime crossing national borders. 23 transnational is a series of actions involving an organized criminal group that begins with preparation, planning, direction, and supervision in several other countries and has a fairly serious impact. an organized criminal group's characteristics are that it consists of three or more people with a structured group structure, which is formed to obtain material benefits and commit various serious crimes and crimes as referred to in the convention. 24 organized crime is considered transnational when (a) the act occurs in two or more countries; (b) the action takes place in one country, but a series of other actions such as preparation, planning, or directing takes place in another country; (c) occurred in one country but other criminal acts were also committed in another country by an organized crime group; or (d) has a substantial effect on a country even if the action is carried out in another country, 21 wangiman, terminologi hukum internasional, jakarta: sinar grafika, (2016). p. 21 22 nikos passas, cross-border crime and the interface between legal and illegal actors, security journal, vol. 16, 2003, https://doi.org/10.1057/palgrave.sj.8340123. 23 wangiman, op. cit 24 wangiman. transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 48 madsen (2019) states another way of looking at transnational crime, namely "that in one of several ways involving two or more sovereign jurisdictions." its criminal tendencies focus on violent or high-level violent crimes such as drug trafficking and human trafficking, and transnational crimes include parental disputes over child custody involving two countries. crimes can also be organized and transnational but do not violate international law, such as smuggling untaxed tobacco products from one country to another. 25 the extra-territorial jurisdiction of a country will be impacted by organized transnational crime. the geographic limits of a country traditionally provide the foundation for asserting jurisdiction. territoriality, as established in the agreement of 1600 in westphalia, is considered a determining element of international law, which conceptualize the ending of a country's authority at its territorial borders irrespective of economic and military differences. but many problems inevitably occur outside the country's borders that still impact the country, which makes the state involved and has power over these problems. according to frederick mann's observations, developments at the end of the 90s stated: "normally no country may apply laws to foreigners according to conduct committed out by foreigners outside the dominion of the relevant sovereign state. it's a tenet of international law, according to which a sovereign state must respect the subjects and rights of all sovereign powers outside its area.”. 26 in the 19th century, every nation, like several other european countries, began to take jurisdiction over non-citizens' foreign behaviors, damaging public security when progress took place. 27 extra-territorial jurisdiction has a fundamental feature that is transnational. according to diane orentlicher, the "law of more than one state, generally non-state actors" is also, in certain cases, national law at least. transnational law includes parts of domestic and international law to understand the kinds of transnational crimes and therefore the dissolution of old dichotomies between the two. 28 the legitimacy of the application of extra-territorial jurisdiction must include principles relating to matters such as the territorial principle, the principle of citizenship, the principle of universality, the principle of protection, and the principle of effect. 29 the following definitions were developed by the united nations office on drugs and crime (unodc) for use by countries participating in the voluntary reporting system on migrant smuggling-related conduct (vrs-msrc) in the implementation of the ball process, i.e.: a. irregular migrant: “a person who, owing to unauthorized entry, breach of a condition of entry, or the expiry of their visa, lacks legal status in a transit or host country. the definition covers, among other things, those persons who have entered a transit or host country lawfully but have stayed longer than authorized or subsequently taken up unauthorized employment (also called clandestine or undocumented migrant or migrant in an irregular situation). the definition also covers those persons who migrate to enter or stay in the envisaged destination country irregularly.” b. irregular migration: 'unauthorized movement occurring outside the country of origin, transit or destination standards and procedures. without the requisite authority or 25 philip reichel and jay s. albanese, handbook of transnational crime and justice, handbook of transnational crime and justice, second edi (united states: sage publications, 2014), https://doi.org/10.4135/9781452281995. 26 aldo ingo sitepu, “application of extraterritorial jurisdiction in european convention on human rights (case study: al-skeini and others v. uk),” indonesian journal of international law 13, no. 3 (2016): 353, https://doi.org/10.17304/ijil.vol13.3.655. 27 danielle ireland-piper, “prosecutions of extraterritorial criminal conduct and the abuse of rights doctrine,” utrecht law review 9, no. 4 (2013): 68–89, https://doi.org/10.18352/ulr.243. 28 diane f orentlicher, “whose justice? reconciling universal jurisdiction with democratic principles,” georgetown law journal 92, no. 2 (2004): 1067. 29 john de pue, “fundamental principles governing extraterritorial prosecutions–jurisdiction and venue,” united states attorneys’ bulletin 55, no. 2 (2007): 1–12. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 49 documentation required by the immigration requirements, the country of destination is entered, stayed or work in the country of destination." 30 different terminology and concepts are used in the relevant literature on social sciences for those engaging in "illegal" migration. therefore, the persons who enter a country without permission, exceed the stay limit of their visa, stay in a country without a proper residence permit, and/or violate immigration regulations in other ways that make them liable for expulsion with the designation: irregular/ illegal/ unauthorized/ illegitimate/ clandestine migrants, or also 'sans papiers' (france), 'clandestine’ (italy), 'clandestinos' (spain), lathrometanastes (greece). 31 tabel. 1.3 definition of irregular migration 32 five categories of irregular migration 1 migrants entering the nation illegally often physically avoid or produce fraudulent documentation for formal immigration checkpoints. 2 migrants who enter the nation lawfully for a term that has ended do not renew their permit to live and consequently remain over the legal limit. 3 migrants are allowed to stay in a nation but violate some visa terms, for instance, by working more than their status as migrants permitted. 4 asylum seekers who enter the nation lawfully to request refugee status remain but continue to exercise their rights despite the final ruling rejecting them. 5 children born as irregular migrants in a nation the phrase "irregular" migration and "irregular" migrants are used in this report. the adjective "irregular" is preferable to the term "illegal." the usage word "illegal" is reported since it implies crime because most irregular migrants are not criminals, stresses the un special representative on the rights of non-citizens, who recommended in his report that: "immigrants...even those who are in a country illegally and whose claims are deemed invalid by the authorities, should not be treated as criminals" (e/ cn. 4/sub. 2/2003/23 para 29). it can also be regarded as rejecting the humanity of those who are "illegal" if the immigrant is a man who has fundamental rights without regard to status. for immigrants who are "illegal" seekers and are themselves in an "irregular" state, their asylum claim will continue to be jeopardized. 33 the illegal migration of people across international boundaries entails human trafficking. the smuggling of migrants is an illegal form of immigration. migrant smuggling occurs when fundamental conditions are fulfilled, namely that people who are engaged (or attracted) in international migration are contacted by or are contacted by one of the persons that regulate migrant movement for economic and other reasons which do not have a legal migration procedure. 30 united nations office on drugs and crime (unodc), migrant smuggling in asia, vol. 2 (bangkok: regional office for southeast asia and the pacifc, 2015). 31 anna triandafyllidou and thanos maroukis, migrant smuggling: irregular migration from asia and africa to europe london: palgrave macmillan, (2012). 32 marie mcaulifee and khalid koser, a long way to go irregular migration patterns, processes, drivers and decision-making, vol. 7 (australia: anu press, 2017), https://doi.org/10.7748/ns.30.22.26.s25. 33 khalid koser, “irregular migration, state security and human security,” a paper prepared for the policy analysis and research programme of the global commission on international migration, geneva, no. september (2005): 33. transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 50 both push and pull considerations are the reasons for migration. these criteria are mostly linked to comparing migrant nations of origin and destination countries with various socioeconomic circumstances. for example, drivers include lack of education or possibilities for employment, poverty, and loss of traditional livelihoods. for instance, pull factors include greater wages and better work possibilities in the country of destination or already organized migration methods. pull factors also include the opportunity for migrants to merge ethnic groups and communities in the destination country. you can relocate if the push and pull factor is tempting enough. migration is difficult, however, in most circumstances. national countries manage the admission and exit of persons to or from their territory carefully and control it. although migration may be helpful and bad, the basic composition of governments and nations can be disrupted. if there are no legal ways of migration, an individual will be lured by unlawful means to move. 34 2. the obligation to criminalize migrant worker smugglers by each country one of the main elements of state status is control over a territorial area, within which territory the state law applies. in this area, there is the highest authority in the country. so that the concept of territorial sovereignty appears, sovereignty owned by a country indicates that a country is independent or not subject to the power of other countries. but this cannot be interpreted that there is no limiting sovereignty. the limitation itself is law, both national law and international law. 35 the territorial authority of a country must stipulate legal provisions that regulate and supervise the traffic of people entering and leaving the country's territory based on the concept of sovereignty. shaw stated that jurisdiction is always related to state sovereignty, equality, and non-interference. national jurisdiction is a statement to determine the area where the high level of actions carried out by government agencies, free from interference/ influence and the principles of international law. 36 observing the sovereignty described above, it can be said that a sovereign country is a country that can regulate and manage its own domestic and foreign interests. 37 the movement of people from one country to another in a way that is not following the legal regulations made by a country is called illegal immigration. this illegal immigration has implications for the continued development of transnational crime or what is known as transnational crime, 38 which then develops into organized crime, such as migrant smuggling and human trafficking. the state of indonesia, as a sovereign country seeks to regulate the order of the country, one of which needs to be regulated is regarding the flow of traffic of people and goods from other countries to their country by regulating immigration. standard migration laws in national laws generally only regulate illegal entry or exit from a country. it is not enough to criminalize migrant smuggling because it sees a form of crime that does not only involve more than one country, so the state also needs to separately regulate smuggling offenses comprehensively migrants targeting smuggling activities that occur abroad because it could happen when smugglers arrange for migrants to leave the country of origin and transit country legally which then aims to enter illegally into the final destination country, so it can be seen that some efforts smuggling of migrants, many involving transit 34 natalia ollus, “the united nations protocol to prevent, suppress and punish trafficking in persons, especially women and children: a tool for criminal justice personnel,” united nations asia and far east institute for the prevention of crime and the treatment of offenders (unafei), no. 62 (2004): 198. 35 i wayan parthiana, “pengantar hukum international” mandar maju, (1990). p. 294. 36 markus p beham, “malcolm n. shaw, international law. cambridge university press, cambridge et al., 2014, isbn 9781107612495, lxxxv+ 981 pp., $74.99,” austrian review of international and european law online 19, no. 1 (2017): 423. 37 ria tri vinata, “prinsip-prinsip penentuan laut teritorial republik indonesia berdasarkan konvensi hukum laut 1982,” perspektif 15, no. 3 (2010): 207–25. 38 abdurrachman mattalitti, “kerjasama asean dalam menanggulangi kejahatan lintas negara,” direktorat jenderal kerjasama asean departmen luar negeri republik indonesia, jakarta, 2001.. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 51 countries. this is why common migration laws are not sufficient to target organized migrant smuggling operations whose operations are growing, such as law of republic indonesia number 9 of 1992 concerning immigration which has now been repealed and replaced with law of republic indonesia number 6 of 2011, which currently includes regulates the smuggling of migrants. combating the crime of migrant smuggling needs to adopt an international convention, uncatoc, and migrant smuggling protocol in determining the legal basis for criminalizing acts of migrant smuggling, which then creates international obligations imposed on the state in terms of combating and suppressing the crime of migrant smuggling. adhering to the legality principle that there is no crime without law (nullumcrimen sine lege) implies that the law must clearly define the offense and its punishment, placing individuals in a position where they know or are reasonably capable of discovering which act or omission which would make them criminally liable. 39 this principle has become a fundamental right affirmed by the declaration of human rights (in the future referred to as udhr) contained in article 11 paragraph (2). adhering to this principle, the law must precisely define social action as a crime and determine its punishment to avoid arbitrariness and enable citizens to regulate their behavior. the rule of law principle requires states that suppress certain transnational crimes, such as the crime of migrant smuggling, must prohibit such actions as appropriate by providing clear warnings about these prohibitions. the obligation of cooperating states to commit the same offense fulfills the requirement of legality because it allows for a fair warning, especially in crimes against humanity, as a crime under customary international law or general principles of law. 40 concerning criminalization, it is necessary to determine the sources of international law that impose obligations on states in criminalizing migrants smuggled by sea. uncatoc has 190 state parties 41 and the convention's purpose is stated in article 1 of uncatoc: "to promote international cooperation to prevent and combat transnational organized crime more effectively." article 37 i of uncatoc and article 1 of the migrant smuggling protocol explain the relationship between these legal instruments. the main objective of uncatoc and its protocols is to effectively combat transnational organized crime, including by strengthening international cooperation. therefore, uncatoc focuses on activities that benefit organized criminal groups. nonetheless, crimes committed following uncatoc and its protocols are still punishable if committed without the involvement of an organized criminal group, such as an act orchestrated by a person without connection to a larger operation who may not constitute an organized criminal group, as defined in article 34 paragraph (2) uncatoc namely "... the offenses established following articles 5, 6, 8, and 23 of this convention shall be established in the domestic law of each state party independently of the transnational nature or the involvement of an organized criminal group as described in article 3, paragraph 1, of this convention, except to the extent that article 5 of this convention would require the involvement of an organized criminal group...." and the protocol complements the convention whose provisions must be interpreted together. all relevant terms, including the definition of violation as "transnational in nature," shall be defined following the convention, the applicable provisions, mutatis mutandis, of the protocol unless otherwise stated. there is no provision equivalent to article 34 (2) uncatoc found in the protocol, but because the provisions of the convention apply, mutatis mutandis, to the protocol unless otherwise stated, and because of the violation established following the convention then article 34 (2) of the convention applies mutatis mutandis to the protocol. 39 neilboster, an introduction to transnational criminal law, second edi united kingdom: oxford university press, (2018). p. 45. 40 ibid 41 “united nations office on drugs and crime, status of ratification united nations convention against transnational crime and its protocols,” n.d. transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 52 therefore, violations of national laws must be applicable in situations of migrant trafficking, even if transnationality or its involvement of organized criminals does not exist or can't be proven. 42 indirectly related to the above, the united nations charter, in article 2 paragraph (4), confirms that: "all member countries in their international relations must refrain from threatening or using the political independence of the state or power over the territorial integrity of any country. whereas territorial integrity demands equal external and exclusive internal sovereignty, territorial protection, sovereignty, and policy independence.” 43 the breadth of the scope of human rights as a fundamental human right clearly states that humans must obtain guarantees for human rights, apart from the status and identity attached to them. on the other hand, they are obliged to respect the human rights of other human beings. 44 human rights can also be understood as a set of rights that are inherent in the essence of every human being who is a creature of god almighty and is his gift that must be respected, upheld, and protected by the state, law, government, and everyone for the honor and protection of dignity and human dignity. john locke saw that humans have fundamental rights solely because of their nature as humans. john locke saw that the government must protect this fundamental right. 45 the fundamental rights of people, one of which is to migrate from the place of origin to the destination, are ethically defended and useful in completing the human right to emigrate. the harmony with the un human rights principles has given everyone the freedom to leave their country, including returning to their country of origin. 46 this can serve as a stimulus to outline a more just, moral, and cultured migration policy and have implications for migrants and border control or surveillance. however, this condition is used to carry out human smuggling, which is included in the category of transnational crimes, synonymous with human smuggling and migrant workers. human smuggling is generally understood as an attempt to gain financial or material benefits directly or indirectly. the victim who is to be smuggled consciously follows the smuggling process, including all the consequences. 47 smuggled migrants will be vulnerable to other violations due to the migrant smuggling process or its implications. in a report issued by the unodc (united nations office on drugs and crime), smuggled migrants sometimes suffer abuse and severe psychological and/ or physical trauma during smuggling trips. loss of life due to drowning, suffocation, dehydration, and reports of death resulting from smugglers' violence. thus, it can be said that these migrant smuggling activities have the potential to seriously endanger the lives and health of those who are smuggled so that these smuggled migrants have the potential to become victims of human trafficking or are vulnerable to other violations, which in principle are universally recognized by civilized countries that one of them is a transnational crime. organized is included in the qualification of crime against humanity with the motive of smuggling migrants, which certainly involves extra-territorial jurisdiction. this has become a commitment to the principle of universality. 48 42 “legislative guide for the united nations convention against transnational organized crime and the protocols thereto, pan three, chap. i, paragraph 20,” n.d. 43 d florea, “sovereign state the classic basic subject of public international law,” annalis of economics and public administration university of sueclava 12, no. th usv (2012): 1. 44 carla ferstman, mariana goetz, and alan stephens, “reparations for victims of genocide,” war crimes and crimes against humanity: systems in place and systems in the making, koninklijke brill nv, leiden, 2009. 45 aulia rosa nasution, “urgensi pendidikan kewarganegaraan sebagai pendidikan karakter bangsa indonesia melalui demokrasi, ham dan masyarakat madani,” jupiis: jurnal pendidikan ilmu-ilmu sosial 8, no. 2 (2016). 46 united nation, “international migration report 2002”, department of economic social affairs, population division, st/esa/ser.a/220, new york, 2002. 47 international organization of migration (iom), “perbedaan perdagangan orang dan penyelundupan manusia”, pedoman penegakkan hukum dan perlindungan korban dalam penanganan tindak pidana perdaganan orang, 2012, 12. 48 ireland-piper, “prosecutions of extraterritorial criminal conduct and the abuse of rights doctrine.” lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 53 besides that, universal human rights are known, and local human rights in a country are also recognized as a form of non-interventional extra-territorial jurisdiction. the nonintervention concept forbids state interference in other countries' sovereign affairs. the notion was established according to emmerich de vattel in 1757 by swiss experts as "foreign states do not have the power to intervene in foreign governance." the independence of a sovereign state is a property of self-governance that cannot be interfered with by any other state unless that state grants it the right to interfere in its affairs. 49 smuggling activities do occur involving the consent of the migrants themselves, even though in the agreed definition of this crime, there is no mention of the word consent, which then provides the view that migrants in smuggling situations are not seen as victims of crimes or human rights violations, as well as trafficked persons. as a result, their assistance and protection needs are reduced. however, the state, as the primary party to the international human rights treaties and customary law, must ensure that migrants' rights are fulfilled, respected, and protected to prevent crimes and human rights violations of migrants who are victims of the smuggling of migrants or other crimes which influence smuggling activities. respecting, protecting, and fulfilling migrants' human rights is the basis for recognizing and protecting persons smuggled and access to justice, including the right to recovery. state and non-state actors need replies and protections based on the rights applicable under certain protocols and human rights laws. criminalization on the foundation of migration could result in additional human rights abuses, including discrimination, arbitrary detention, separation of families, and incapacity to access essential health care, education, or other rights. this approach enhances migrants to work and live inside the shade of society and raises their vulnerability to state and private actors' exploitation and abuse. 50 using smuggling services can create a huge path to security for the person in touch with such armed conflict. suppose individuals look at efforts focused on preventing and fighting migration smuggling. in that case, this can violate human rights. namely, everyone's right to leave any country and the right to seek asylum, including their own country. 51 although irregular entrance is a violation of administrative but non-regular admission and residence of migrant's national borders and the legislation on immigration, the fact that crossing borders or staying irregularly on land is not a crime against individuals, goods, or national security should not be considered to be criminal. 52 in addition, article 5 of the migrant smuggling protocol calls on governments not to punish migrants for using smuggling services. migrants should not be regarded as criminals in bizarre circumstances or as a national or public security threats. 53 article 9 of the universal declaration of human rights (udhr) and the iccpr stipulate that freedom and personal security are rights that are owned by everyone so that arrests or detentions aimed at someone cannot be carried out arbitrarily or arbitrarily. in article 9(1) of the iccpr, which requires any action that imposes limits of that right “must be justified as reasonable, necessary and proportionate in light of the circumstances,” the human rights committee has interpreted the right to freedom and prohibition of arbitrary arrest/detention; accordingly, the legal base for any detention in the national legislation should identify the acceptable reasons of detention and custody, in bizarre circumstances, of asylum seekers, 49 david j gerber, “beyond balancing: international law restraints on the reach of national laws,” yale journal of international law 10, no. 1957 (1984): 210. 50 “the office of the high commissioner for human rights (ohchr), the criminalization of irregular migration,” n.d. 51 global alliance against traffic in women (gaatw), “facilitating migration and fulfilling rights – to reduce smuggling of migrants and prevent trafficking in persons” (vienna, 2017). 52 “report of the special rapporteur on the human rights of migrants, françois crépeau,” vol. a/hrc/20/2, 2012. 53 a/hrc/10/21, “promotion and protection of all human rights, civil,political, economic, social and cultural rights, including the right to development,” episodes, vol. a/hrc/10/2, december . transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 54 migrants, and refugees, as last-resort measure and review their application in each case. thus, asylum seekers might be held for a short time to document admission, register their claims and identify others or risk crimes against national security. 54 the restriction on arbitrary detention is a standard that cannot be eliminated from international customary laws. in addition, it is not a viable rationale to use immigration detention to criminalize irregular movement, often resulting in arbitrary detention. the arrest of children in respect of immigration shall not be allowed and the procedure for ensuring that national laws do not allow the arrest of children in cases in which adult migrants are detained should also be provided to ensure the effects on their mental health of the arrest procedure of each state party. any necessary detention must be carried out inappropriate facilities, sanitary, nonpunitive, and must not occur in prisons. 55 in its capacity for organizing, prosecuting, and punishing those who organize, perform or engage in this crime, the international criminal court (ics), as an organization of international institutions of justice, offers the opportunity and duties of imposing sanctions upon the jurisdiction of drug trafficking crimes, migrants' smuggling and trafficking in persons and the like. the icc provides efficiency in international law enforcement and accommodates other forms of prosecution than those established at the national level. 56 c. conclusion migrant smuggling is a human security and national security issue that affects citizens, society & the state. migrant smuggling networks exist within and outside the region, but there has been no strong and agile law enforcement response to counterbalance them. although international law has regulated various legal bases concerning transnational organized crime, both universal rules through un conventions where un members participate in ratifying these conventions. the national laws of each country also regulate organized transnational crimes, but they must not interfere in the affairs of other countries. each country implements and adheres to the sovereignty of their respective jurisdictions, but each country can also apply its extra-territorial jurisdiction with restrictions regarding violations of territorial jurisdiction outside the country's borders for certain actions that are recognized according to the basic agreement of the state. d. suggestion as a suggestion, the uncatoc should regulate the smuggling of migrant workers and their settlement if a case occurs bilaterally or across countries. besides that, it is also necessary to regulate the protection of human rights and international relations with migrant workers. furthermore, the uncatoc should also include arrangements for all types of criminal acts classified as transnational crimes. the next suggestion is that in fulfilling the legal obligations of each country which is the object of smuggling of migrant workers against smugglers based on an international legal perspective, an international institution should be established whose task is to oversee the implementation of capacity building for joint work along smuggling routes so that this joint work can be carried out consistently. 54 ccpr/c/gc/35, “international covenant on civil and political rights, general comment no.35 paragraf 18,” human rights monitoring, 2014. 55 hisana amani husellin, “peran peran united nations international children’s emergency fund (unicef) dalam melindungi anak-anak korban perang dalam prespektif hukum internasional” (universitas islam riau, 2019). 56 andreas schloenhardt, “transnational organized crime and the international criminal court developents and debates,” university of queensland law journal 24, no. 1 (2005): 4. lampung journal of iternational law (lajil) p-issn 2656-6532 volume 5 number 1, march 2023 e-issn: 2723-2603 55 references “legislative guide for the united nations convention against transnational organized crime and the protocols thereto, pan three, chap. i, paragraph 20,” n.d. “report of the 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https://www.dw.com/id/3-jalur-utama-migrasi-ilegal-yang-penuh-ancaman-dan-marabahaya/a-41813553 https://www.unodc.org/toc/en/crimes/migrant-smuggling.html transnational smuggling of … ni nengah adiyaryani i putu rasmadi arsha putra 58