State Practice of Asian Countries in International Law

Indonesia

In: Asian Yearbook of International Law, Volume 27 (2021)
Authors:
Arie Afriansyah
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Afandi Sitamala
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Annisa Hafizhah
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M. Ya’kub Aiyub Kadir
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Malahayati Rahman
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Nabyla Humaira
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Nurhidayatuloh
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Siti Khairunnisa
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Vita Cita Emia Tarigan
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Open Access

Making & Concluding Treaties – Negotiation – Accession – Ratification – Deposit – Registration – Internal Constitutional Arrangements

Treaties

Indonesia – to Improve Public Services and Support Ease of Doing Business in Indonesia – ratified the Convention on the Elimination of Statutory Requirements for Foreign Public Documents (Apostille Convention).

The Government of Indonesia ratified the Convention Abolishing the Requirement of Legislation for Foreign Public Documents on 4 January 2021, and promulgated it on 5 January 2021, through Presidential Regulation Number 2 of 2021. The Convention Abolishing the Requirement of Legislation for Foreign Public Documents was signed on 5 October 1961, in The Hague, The Netherlands.

The essential consideration for acceding to this Convention is that the legalization of foreign public documents is necessary in international cooperation relations in order to meet the necessities of life and the existence of a country to protect and promote public welfare as stated in the Preamble to the 1945 Constitution of the Republic of Indonesia. In order to improve public services and facilitate business in Indonesia, it is necessary to simplify the process of legalizing foreign public documents. It is in line with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention), which was adopted at The Hague Conference on Private International Law.

Prior to the ratification of the Apostille Convention, the Minister of Foreign Affairs of the Republic of Indonesia issued Regulation No. 09/A/KP/XII/2006/01, governing the legalization of foreign documents. It specified that foreign documents to be recognized in Indonesia must be authenticated by the Ministry of Justice and/or the Ministry of Foreign Affairs of the other country and by Indonesian representatives in the foreign country. On the other hand, Indonesian documents that will be enforced in other countries must be legalized by the Ministry of Law and Human Rights, the Ministry of Foreign Affairs, and Indonesian representatives abroad.

After issuing Presidential Regulation of the Republic of Indonesia Number 2 of 2021 concerning the Ratification of the Apostille Convention, the Government of Indonesia issued technical instructions regarding the implementation of the Apostille service, namely through the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 6 of 2022 concerning Apostille Legalization Services in Public Documents.

An apostille refers to the act of validating the Official’s signature, stamp approval, and/or official seal on the requested documents based on verification. By Article 2, paragraph (1) of the Minister of Law and Human Rights of the Republic of Indonesia Regulation No. 6 of 2022, the Apostille is administered by the Minister of Law and Human Rights through the Director General. An apostille is performed on documents issued in Indonesia for use in the territories of other signatory nations to the Hague Apostille Convention.

Article 2 paragraph (3) of the Regulation of the Minister of Law and Human Rights states that several documents that require Apostille action are:

  1. Documents originating from an authority or official related to a state court or tribunal, including those from a public prosecutor, court clerk, or bailiff;

  2. Administrative documents;

  3. Documents issued by a notary public; and

  4. An official certificate is attached to a document signed by an individual with civil rights, such as a certificate that records the registration of a document or a specific validity period of a document on a certain date, and ratification of signatures by officials and notaries.

Under Article 2 paragraph 4, there are exceptions applied under the following conditions: Documents signed by diplomatic or consular officials; Administrative documents directly related to commercial or customs activities; and Documents issued by the prosecutor’s office as a prosecution institution as stated in Presidential Regulation Number 2 of 2021.

Malahayati Rahman

Mutual Legal Assistance between the Republic of Indonesia and the Russian Federation for Eradicating Corruption across National Sovereignty

In 2021, Indonesia ratified Mutual Legal Assistance (MLA) as the follow-up to the two-state agreement between Russia and Indonesia in Moscow. The MLA tried to eradicate and prevent corruption that may happen across the boundaries of state sovereignty. This ratification instrument was carried out on the legal basis of the Law of the Republic of Indonesia Number 5 of 2021 on the Treaty Between the Republic of Indonesia and the Russian Federation on Mutual Legal Assistance in Criminal Matters.

The implementation of the MLA for Indonesia requires a negotiation process that is quite challenging and needs a certain period, namely two years only for signatories in 2019 and another two years for ratifying the MLA on 19 October 2021. While for Russia, this MLA was ratified a year earlier, namely in November 2020. According to Article 23(2), the MLA has bound for both parties for 30 days after the parties notify each other through their instrument of ratification.

This MLA technically consists of 23 Articles which cover, among others, legal aid issues in connection with criminal cases, especially corruption involving two countries where each party has the promise to assist in terms of submitting documents, taking evidence, locating and identifying people and goods suspected of being related to criminal acts, especially corruption, requests for the presence of witnesses, victims and experts, transferring people to participate in criminal justice processes, taking steps to freeze, detain, searches of places connected with criminal acts, and confiscation of proceeds of crime. In addition, the crucial element is that each party may accept legal assistance from another party on the grounds that this is an object of bank or tax secrecy. The MLA is crucial for Indonesia and Russia, considering that there are several cases between the two States, especially those related to criminal acts of corruption or other financial crimes, which often cross the borders of state sovereignty and become a significant obstacle to creating an impartial judicial process. This entered-into-force treaty will prevent the perpetrators of crimes involving Indonesian legal jurisdiction from running into the jurisdiction of Russia and vice versa. Russia is the eleventh country that has an MLA agreement with Indonesia. With the existence of this MLA agreement, Russia and Indonesia cannot avoid that they must provide full support for the judicial process in each country, which is directly or not related to their legal jurisdiction.

Nurhidayatuloh

Environmental Impact Assessment & Other Environmental Principles

International Environmental Law

The Implementation of NDPE Principle in Indonesia (No Deforestation, No Peat, No Exploitation)

The NDPE (No Deforestation, No Peat, No Exploitation) principle was first introduced by the company Wilmar International on 5 December 2013. Since then, various oil palm plantation companies have begun to commit themselves to this principle to support the sustainability of oil palm plantations. By 2020, almost all the largest palm oil processing companies in Indonesia and Malaysia have committed to NDPE. As of April 2020, the NDPE policy covered 83 percent of palm oil processing capacity in Indonesia and Malaysia. Unfortunately, due to weak implementation, the effectiveness of NDPE coverage was reduced to 78 percent.

The NDPE policy is the strongest private instrument to cut the direct link between deforestation and palm oil. Under the “No Deforestation” principle, this policy intends to avoid deforestation when clearing land to produce commodities or other related activities. The implementation of this commitment usually refers to the High Carbon Stock and High Conservation Value approaches, which also include regulating land burning practices and reducing greenhouse gas emissions in plantations.

As for the “No Exploitation” principle, the policy requires no exploitation of workers, local communities, or small-scale farmers in the production of agricultural commodities. This commitment is about respecting human rights, with a focus on the rights of indigenous and local communities, workers, and smallholders. The ‘No Peat’ principle prohibits companies from carrying out new developments on peatlands and promotes the implementation of Best Management Practices on existing plantations located on peatlands. If possible, peat restoration should also be carried out.

NDPE policies, along with government actions and low palm oil prices, have resulted in lower rates of deforestation associated with oil palm plantations. By 2020, 16 of the 21 largest oil palm plantations in Indonesia will be compliant with NDPE policies related to forest and peatland clearing activities. Nevertheless, certain plantation companies continue to engage in deforestation for the purpose of establishing oil palm plantations.

The results of a 2020 analysis by Chain Reaction Research (CRR) show that 10 palm oil companies are responsible for the deforestation and development of peatlands in Indonesia which totaled around 39,500 hectares in 2019. The 10 company groups are Sulaidy, Jhonlin Group, Mulia Sawit, Indonusa, Rugao Shuangma Group, BEST Group, Peputra Group, Musirawas, Golden Land Bhd, and Tunas Baru Lampung.

Furthermore, an analysis conducted by CRR’s partner, AidEnvironment, reveals that Indonesia continues to be the deforestation hotspot in Southeast Asia, as indicated by concession data from the first six months of 2022. The data reveals that the top 10 deforesters collectively caused a forest loss of 8,100 hectares, with all the featured concessions located in Indonesia. Two out of the 10 concession companies in this period are in Papua, three are in Sumatra, and the rest are in Kalimantan.

The 8,100 hectares of forest loss among the top 10 deforesters represents a 43 percent increase compared to the first half of 2021. It is important to note that the deforestation calculation for this data was conducted at the concession level rather than at the group level. The higher number in 2021 could be the result of higher palm oil prices and may signal a reversal of the trend that saw declines in deforestation in recent years. However, it is still too early to draw definitive conclusions. Nevertheless, the data from the first half of 2022 is likely to be of concern to NGO s and other organizations that have been actively working to curb deforestation in Southeast Asia with policy commitment and appropriate action.

Vita Cita Emia Tarigan, Siti Khairunnisa, and Annisa Hafizhah

Indonesia and ICAO: Flight Information Region (FIR)

Air Law & Law of Outer Space

Sovereignty or Aviation Technical Issues?

In 2022, as a form of implementing the mandate of Law Number 1 of 2009 concerning Aviation, which has been fought for a long time, it has finally made significant progress. The entire airspace above Indonesian territory (including over the Riau Islands) is included in the Jakarta Flight Information Region (FIR). Indonesia and Singapore have agreed to a new bilateral agreement through the Agreement between the Government of the Republic of Indonesia and the Government of the Republic of Singapore regarding the Adjustment of the Boundary Between the FIR Jakarta and the FIR of Singapore which was ratified through the Presidential Regulation of the Republic of Indonesia Number 109 of 2022. The bilateral agreement was agreed upon with various changes to benefit from this agreement.

Despite having gone through various negotiations and deliberations, several clauses of the bilateral agreement are still in conflict with several national and international provisions. It must be understood there were three agreements signed, namely the Extradition, Defense Cooperation Agreement, and FIR Realignment, a package of mutual benefit agreements. However, in its implementation, two of the three agreements were ratified through law by the mandate contained in Article 10 of Law Number 24 of 2000 concerning International Treaties that provide “[t]he ratification of international agreements is carried out by law when it relates to: a. political, peace, defense, and state security issues; b. changes in territory or determination of the boundaries of the territory of the Republic of Indonesia; c. sovereignty or sovereign rights of the state; d. human rights and the environment; e. formation of new legal norms; f. foreign loans and/or grants.”

The fact that the agreement regarding FIR Realignment was ratified through a presidential regulation while the other two were ratified through law is proof that the Presidential Regulation of the Republic of Indonesia Number 109 of 2022 contradicts the provisions of national law. Then Article 7 of the latest FIR agreement states that “This agreement is valid for 25 years from its entry into force and will be extended by mutual agreement if both Parties feel the benefits of doing so …” Article 7 is contrary to international rules as stated in Annex 11 of the Convention which clearly states that “… both the delegating and providing States may terminate the agreement between them at any time.” However, the existence of Article 7 has locked Indonesia for 25 years. Even if there is a change, it is only operational. And the fixed term of the agreement is 25 years, it cannot be changed. The difference in perception among high-ranking officials in Indonesia regarding FIR makes the newly ratified agreement relatively unchanged from the previous agreement.

In addition, Indonesia’s biggest mistake in taking over the FIR from Singapore was to forgo the sovereignty aspect as the legal basis for bilateral agreements and instead consider this agreement to be only a technical matter. If the issue of taking over the FIR is only limited to a technical problem that has nothing to do with sovereignty, then AirNav Indonesia will suffice to resolve it. Cambodia used this approach when it took over the FIR from Thailand in 2000.

Article 6 of Law No. 1 of 2009 concerning Aviation mandates that: The government has the authority and responsibility to regulate and manage its airspace for the benefit of aviation, the national economy, defense and security, social culture, and the environment. So it is clear that responsibility for ensuring aviation safety is a must for a sovereign country, while delegation is temporary.

The results of the negotiations between the two countries gave the impression that Singapore came with a strong ideology while Indonesia came with the opposite conditions so that Indonesia only accepted proposals from Singapore which then became obligations in the clauses of the agreement that Indonesia had to fulfill to Singapore while Singapore did the opposite. The three agreements agreed upon by Indonesia and Singapore on 25 January 2022, are a formalization of the Framework of Discussion. In this case, Singapore implemented some kind of mutual agreement and almost made a profit from it all.

Ratification has already been done, the only way to change this Presidential Regulation regarding the FIR is by conducting a judicial review. Even so, this only changes national instruments and does not affect international instruments in the sense that it will not change the contents of agreements that have been stipulated because judicial review is only an internal mechanism for Indonesia.

M. Ya’kub Aiyub Kadir and Nabyla Humaira

Protection of Individuals under International Humanitarian Law

International Humanitarian Law

Government Regulation No. 3/302 on the Implementation of Law No. 23/2019 on National Resource Management for State Defense (PSDN Law) (PP 3/2021)

On 12 January 2021, the Government of Indonesia has signed Government Regulation No. 3/2021 on the Implementation of Law No. 23/2019 on National Resource Management for State Defense (PSDN Law) (PP 3/2021). The regulation allows the Ministry to start recruiting the first 25,000 members of the reserve component (Komponen Cadangan). Article 1 of PP No. 3/2021 on the Implementation of Law No. 23/2019 on PSDN Law defined the reserve component (Komponen Cadangan) as a national resource prepared to be deployed through mobilization to enlarge and strengthen the powers and capabilities of the main component.

On 25 October 2021, four non-government organizations (NGO s), including the Association for Participatory Community Initiatives for Justicial Transition (IMPARSIAL), Association for the Commission for Disappeared Persons and Victims of Violence (Kontras), Indonesian Public Virtue Foundation, Indonesian Legal Aid and Human Rights Association conducted a material review of the PSDN Law by submitting it to the Constitutional Court. The enactment of Law No. 23/2019 PSDN Law and PP No. 3/2021 brought confusion to the status of citizens (civilian and combatant). The law showed ambiguity of how people can be included in efforts to defend their state.

Indonesia has been a party to the Geneva Convention 1949 since September 1958. According to the Geneva Conventions, “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This provision is included as the first article of all four of the 1949 Geneva Conventions. The ratification of the 1949 Geneva Convention implies that Indonesia is obligated to comply with International Humanitarian Law (IHL), particularly the distinction principle.

The protection objective of the distinction principle identifies the basic categories of (“civilian” and “combatant”) and objects (“civilian objects” and “military objects”), distinguished, and the various conditions of protection can only be achieved if identified. The blurring status of Komponen Cadangan between civilians and combatants can also fall into the status of “unauthorized combatants,” where this status will be very detrimental because citizens who are active in hostilities will lose their protected status as civilians. The civilian status will be ambiguous when they join Komponen Cadangan. Article 29 of the PSDN Law emphasizes that civilians as Komponen Cadangan would be ready to be mobilized in order to expand and reinforce the Main Components’ strengths and capacities in dealing with military and hybrid threats.

Another confusion is that the PSDN Law does not explicitly state that the Komponen Cadangan is part of the military. This status creates legal uncertainty. IHL demands assertiveness of status, and there is no grey area in the principle of distinction.

Afandi Sitamala

*

State Practice Rapporteur, Associate Professor, Universitas Indonesia.

**

Assistant Professor, Universitas Sultan Ageng Tirtayasa.

***

Lecturer, Universitas Sumatera Utara.

****

Associate Professor, Universitas Syiah Kuala.

*****

Associate Professor, Universitas Malikussaleh.

******

Assistant Lecturer, Universitas Syiah Kuala.

*******

Assistant Professor, Universitas Sriwijaya.

********

Lecturer, Universitas Sumatera Utara.

*********

Lecturer, Universitas Sumatera Utara.

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