Papers by Arie Afriansyah
Refleksi Hukum: Jurnal Ilmu Hukum
Artikel ini membahas hak dan kewajiban negara pantai atas pencarian, pemanfaatan, dan perlindunga... more Artikel ini membahas hak dan kewajiban negara pantai atas pencarian, pemanfaatan, dan perlindungan benda-benda bersejarah bawah air yang diamanatkan oleh hukum internasional yang diatur dalam Konvensi Hukum Laut Perserikatan Bangsa-Bangsa (UNCLOS 1982) dan Konvensi Warisan Budaya Bawah Laut (UCH Convention). Tulisan ini melihat bahwa perlindungan UCH di Indonesia menjadi tidak maksimal dikarenakan regulasi nasional yang disharmonis dan inkonsisten. Temuan lain adalah Indonesia belum meratifikasi UCH Convention karena adanya perbedaan prinsip dasar UCH Convention dengan kepentingan Indonesia. Artikel ini menggunakan metode perbandingan terhadap sejumlah regulasi nasional. Pada akhirnya, artikel mencoba untuk memaparkan langkah-langkah terbaik bagi instansi terkait dalam menyusun strategi perlindungan dan pengelolaan UCH yang efektif, dengan cara memaparkan kendala dan langkah strategis yang dapat pemerintah Indonesia terapkan tanpa harus melakukan ratifikasi UCH Convention. Salah sat...
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Rechtsidee, 2018
The International Covenant on Civil and Political Rights and the International Covenant on Econom... more The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights allow states to conduct forced eviction as long as it is carried out within the given boundaries. This journal will comprehensively elaborate each standards given by the two international human rights covenants as well as the implementation of those standards in the cases of Human Rights Committee and Committee on Economic, Social and Cultural Rights. The standards will then be applied to analyze the case of forced eviction in Bukit Duri, South Jakarta, in the year of 2016. Based on the literature review and the interviews that have been conducted, it can be concluded that states can justify their action of forced eviction if it fulfills the standards of ‘lawful’ and ‘non-arbitrary’. The Bukit Duri forced eviction did not fulfill those standards.
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Uti Possidetis: Journal of International Law
This article was prepared to formulate a strategy for formulating the drafting of exclusion claus... more This article was prepared to formulate a strategy for formulating the drafting of exclusion clauses in bilateral investment treaties and legal policies that are in accordance with national security without violating international law. In its preparation, doctrinal legal research with legal objects is used which is conceptualized as a statutory rule based on the doctrine of positivism (normative juridical) schools. In the Discussion, it was found that Host Country has several options in implementing policies that put forward the national interest such as, asserting rights in agreements in good faith, including exceptions expressly, establishing definitions appropriately in agreements, mentioning special clause categories in agreements, conducting evaluations in a reasonable manner and self-judging. However, of the seven options already mentioned, self-judging is the most profitable option for host countries in implementing policies that orientate national interests. The self-judging ...
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PUBLIC PROCUREMENT LAW AROUND THE WORLD, 2022
One of the efforts used by the Indonesian Government to fulfil the
mandate of the 1945 Constituti... more One of the efforts used by the Indonesian Government to fulfil the
mandate of the 1945 Constitution, especially the welfare of the people,
is public procurement in national development. Furthermore, to ensure
the procurement is in accordance with the mandate, an institution
responsible for implementing Public Procurement known as LKPP was
established. Therefore, this paper discusses the procurement of goods/
services in Indonesia using a legal approach by elaborating related
regulations. Generally, Indonesia’s Public Procurement is divided
into two channels, namely procurement through self-management
and suppliers/providers. Both processes are carried out with regard to
procurement principles and ethics. Public procurement is different from
the military hence they are regulated differently. However, due to the
inception of the COVID-19 pandemic, the Indonesian Government
passed procurement regulations and designed schemes, such as the
procurement of personal protective equipment for health workers and
social assistance for the community.
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Jambe Law Journal
As a country with many islands, Indonesia is also surrounded by an ocean that is two-thirds wider... more As a country with many islands, Indonesia is also surrounded by an ocean that is two-thirds wider than the territory of its own country. So Indonesia must be able to manage and organize the sea regularly to be used for the welfare of the people. Marine spatial planning is not only done to organize what is above the sea but also to organize what is under the sea. One of the activities used under the sea is laying submarine cables and pipelines used for various sectors. There are many irregularities in laying submarine cables and pipelines in the Indonesian sea conditions. It can lead to fatal accidents at sea and damage the facilities needed by the community, so a comprehensive and integrated arrangement is required. In addition to preventing maritime accidents, marine spatial planning can also serve as a reference and guide for all parties using the ocean to prevent conflicts between users. Marine spatial planning is also the primary foundation to support and realize Indonesia's...
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Journal of Indonesian Legal Studies
As the sea possesses rich variations of resources, it also imposes threats to the security and de... more As the sea possesses rich variations of resources, it also imposes threats to the security and defense interests of a nation. Oil and gas exploration is one of the most important economic activities in the sea. In Indonesia, hundreds of offshore oil and gas platforms comprise thirty percent of the total oil and gas production. This signifies the importance of their establishment to the economy. However, their potentials do not stop there. As Indonesia is comprised of a very vast water area, the surveillance system still needs improvement. The article proposes to combine these interests into manifesting a simple surveillance system in offshore oil and gas platforms to improve defense and security systems, both for maritime routes in general and also the installations. The proposal prioritizes installations that are no longer operating, shifting their functions for other beneficial means. This is supported by the current law and regulations of the sea, both at the international and na...
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Netherlands Yearbook of International Law, 2020
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SASI
Introduction: In 2020, the Government of Indonesia enacted the Job Creation Law (UU Cipta Kerja).... more Introduction: In 2020, the Government of Indonesia enacted the Job Creation Law (UU Cipta Kerja). The government drafted the law to assist Indonesia’s economic development to attract investors to invest in Indonesia. When the omnibus law was rolled out for several laws into one, the marine and fisheries industry sector showed signs of decline in terms of utilization, which will have a negative impact on the sector.Purposes of the Research: The article observes the Marine and Fisheries sector issues after enacting the Job Creation Law. This law dramatically impacts the fishers’ communities living in coastal areas and the marine environment. After that, questions will arise regarding the fate of fishers, coastal areas, and the marine environment after enacting this Job Creation Law.Methods of the Research: This writing was written using normative data collection methods such as books, journals, laws and regulations, and other sources that helped the author in completing this article....
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Culture and International Law, 2019
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Papua Law Journal, 2018
Throughout the international climate change regime’s development up until 2012, the emergence of ... more Throughout the international climate change regime’s development up until 2012, the emergence of new and helpful mechanisms and negotiation processes were often accompanied by setbacks such as withdrawals and unmet State obligation. The object of this study focused on international community and indonesia’s policy towards climate change. The Method of this study is normative legal research. The result of this thesis is to situate the internal/domestic climate of several States (the U.S., Canada, Brazil, Norway, and Indonesia) and one regional organization (the EU); and connect it to the outward international policies each have chosen to put forward on the negotiation table and/or submit themselves to. Given the global nature of and concern about climate change, it feels as if there is no shortage of lessons to pick – from outright refusal to be legally bound to the regime at all (the U.S.), an unprecedented and recent move of formal and official withdrawal from the regime’s key inst...
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The International Journal of Marine and Coastal Law, 2022
As the largest archipelagic State in the world, Indonesia has a very long coastline and is border... more As the largest archipelagic State in the world, Indonesia has a very long coastline and is bordered by ten countries. Irrespective of its geographical condition, a genuine delimitation of its maritime boundaries is crucial for Indonesia. However, maritime boundary delimitation often takes considerable time. One problem that often arises during maritime boundary delimitation negotiations is determining the extent to which coastal States can enforce their national law in areas with undelimited maritime boundaries. This article analyses the national and international regulations, as well as Indonesian practice, of maritime law enforcement in areas with undelimited maritime boundaries and Indonesia‘s current practices in resolving maritime-related issues.
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Shipping trade commodities using commercial ships through the sea that are safe and free from sec... more Shipping trade commodities using commercial ships through the sea that are safe and free from security disturbances is a prerequisite for spinning a country's economy. However, not all seas in this world are safe. There are many areas of waters categorized as high-risk areas. UNCLOS regulates that a safe sea implies that the sea is free from threats or disruptions to the activities of peaceful sea use or utilization, among others, free from threats of violence in the form of piracy, sabotage, and armed terrorism at sea. Conditions gave rise to private security services on board called PCASP (Private Contracted Armed Security Personnel). This article aims to find out how to set up PCASP internationally and according to Indonesian law. This research uses secondary data materials, namely books, journal articles, and papers relevant to this research obtained from print and internet media. The use of PCASP supports the safety and security clause in UNCLOS 1982. IMO as an instrument o...
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Sriwijaya Law Review, 2022
Since the 1970s, Indonesia has been acting as a transit country for asylum seekers and refugees t... more Since the 1970s, Indonesia has been acting as a transit country for asylum seekers and refugees to reach Australia and New Zealand. Being a non-state party to the Refugee Convention, Indonesia has become the strategic partner for Australia in managing the issue of asylum seekers and refugees. The two countries have been involved in many bilateral and regional arrangements to tackle the issues. The “Bali process” is one of Indonesia and Australia's arrangements to lead the region in tackling forced migration and refugees. Unfortunately, despite their “common” interests, many of Australia's policies towards asylum seekers have negatively impacted Indonesia in many ways. This paper uses desk study research with a normative approach to analyse nationally and internationally relevant laws and policies. This paper analyses the Bali Process as regional cooperation means of burden-sharing in which Indonesia and Australia play dominant roles while scrutinising how both countries impl...
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Veritas et Justitia, 2021
This article discusses the extent to which Indonesia provides legal protection to prehistoric and... more This article discusses the extent to which Indonesia provides legal protection to prehistoric and historical object, especially shipwrecks, found within its national waters. It is known that Indonesia has not decide to ratify the UNESCO 2001 Convention on the Protection of Underwater Cultural Heritage (UNESCO 2001 Convention). Legal audit performed to existing national rules and regulations reveals that, legally wise, Indonesia has shown its commitment to ensure that underwater cultural heritage within its maritime zones enjoy protection. In addition, it may be argued that therefore Indonesia is not in a position having to ratify the UNESCO 2001 Convention soon.
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Indonesian Journal of International Law, 2021
International armed conflicts is not only threatened the existence of human being, but also broug... more International armed conflicts is not only threatened the existence of human being, but also brought great environmental damage that has served to raise the international community's deep concern. The conflicting parties are liable for violations of their international obligations including damages to the environment. The obligations of warring parties to protect the environment are sourced not only from treaty law but also from customary law. Even though the conflict has ceased, they are still liable for the violations as long as the damages continue. That is why the legal concept of State offers an important doctrine in international conflicts offering the basis of reparation for damaged environment which needing prompt action to be taken by the responsible State.
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Brawijaya Law Journal, 2018
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Yustisia Jurnal Hukum, 2018
Various efforts are made by Indonesia to maintain sovereignty over Papua. One of the efforts take... more Various efforts are made by Indonesia to maintain sovereignty over Papua. One of the efforts taken by the Government of Indonesia is to conduct sports diplomacy through sports cooperation with Melanesian Searhead Group (MSG) member countries. MSG is one of the most intense international organizations to raise the issue of independent Papua.Through descriptive research with normative juridical approach, the authors examine the rules / legal principles relating to how the role of sports diplomacy as a public diplomacy strategy in maintaining the sovereignty of the state: a case study of Indonesia's efforts in maintaining sovereignty in Papua. Based on this, the researchers concluded that sports diplomacy is an important and effective diplomacy tool in maintaining the sovereignty of the state and can create good image of a country where sports can be used as a tool to show togetherness and bring people closer from different background without being associated with differences in ra...
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Proceedings of the 3rd International Conference on Law and Governance (ICLAVE 2019), 2020
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The term “sovereign rights” has been used on many occasions in referring to coastal states’ actio... more The term “sovereign rights” has been used on many occasions in referring to coastal states’ actions in exploring and exploiting the ocean’s natural resources beyond their sovereign territory. Not to mention the lack of comprehension between “sovereignty” and “sovereign rights” of the general public, it appears that the last term is also lacking clear definition available for a legal basis. This clarity is crucial to give the legal certainty for states’ entitlement to conduct actions within their jurisdictions. This paper tries to clarify the legal definition of “sovereign rights” under international dan national practice. It concludes that no single universally accepted definition of sovereign rights. The explanation of rights and duties of such a definition is mostly practiced both internationally and nationally. The finding is based on the survey of the implementation of international rules, international judgments, and Indonesian court decisions.
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Penelitian ini bertujuan untuk memberikan gambaran terkait perkembangan prinsip CBDR, diikuti den... more Penelitian ini bertujuan untuk memberikan gambaran terkait perkembangan prinsip CBDR, diikuti dengan elaborasi dua elemen, yaitu common responsibility dan differentiated responsibility serta memberikan penjelasan mengenai implementasi prinsip CBDR dalam beberapa instrumen hukum internasional.Penelitian yang dilakukan dengan metode yuridis normatif, di mana penelitian dilakukan dengan mengkaji taraf sinkronisasi instrumen internasional melalui studi kepustakaan.Metode penelitian yang digunakan adalah kualitatif di mana penulis mengelaborasi kedudukan CBDR sebagai prinsip hukum lingkungan internasional melalui analisis implementasinya pada instrumen hukum internasional secara umum. Artikel ini berkesimpulan bahwa eksistensi prinsip CBDR dalam instrumen internasional terkait terdapat dalam tiga periode: awalan pembentukan prinsip, kristalisasi konsep dalam intrumen hukum internasional dan lahirnya aturan khusus sebagai bentuk lanjutan dari konsep CBDR khususnya dalam bidang perubahan i...
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Papers by Arie Afriansyah
mandate of the 1945 Constitution, especially the welfare of the people,
is public procurement in national development. Furthermore, to ensure
the procurement is in accordance with the mandate, an institution
responsible for implementing Public Procurement known as LKPP was
established. Therefore, this paper discusses the procurement of goods/
services in Indonesia using a legal approach by elaborating related
regulations. Generally, Indonesia’s Public Procurement is divided
into two channels, namely procurement through self-management
and suppliers/providers. Both processes are carried out with regard to
procurement principles and ethics. Public procurement is different from
the military hence they are regulated differently. However, due to the
inception of the COVID-19 pandemic, the Indonesian Government
passed procurement regulations and designed schemes, such as the
procurement of personal protective equipment for health workers and
social assistance for the community.
mandate of the 1945 Constitution, especially the welfare of the people,
is public procurement in national development. Furthermore, to ensure
the procurement is in accordance with the mandate, an institution
responsible for implementing Public Procurement known as LKPP was
established. Therefore, this paper discusses the procurement of goods/
services in Indonesia using a legal approach by elaborating related
regulations. Generally, Indonesia’s Public Procurement is divided
into two channels, namely procurement through self-management
and suppliers/providers. Both processes are carried out with regard to
procurement principles and ethics. Public procurement is different from
the military hence they are regulated differently. However, due to the
inception of the COVID-19 pandemic, the Indonesian Government
passed procurement regulations and designed schemes, such as the
procurement of personal protective equipment for health workers and
social assistance for the community.
In this context, this thesis examines all relevant legal protection for the environment during armed conflict. It argues that international rules are adequate for protecting the environment during armed conflict. Such rules are not only sourced from the law of war, but also from a number of relevant peacetime international rules which remain valid among belligerents during times of conflict. This thesis also examines the laws of international responsibility. These laws regulate how three possible types of actors (states, international organisations, and individuals) may be held responsible for any unlawful damage (including to the environment) caused during armed conflict. Accordingly, to achieve maximum reparation for wartime environmental damage, holding a state responsible is preferable to allocating responsibility to international organisations or individuals.
Unfortunately, despite the existence of rules protecting the environment, it is found that in the last two centuries, belligerents have continued to engage in unlawful conduct causing severe environmental damage during numerous notable armed conflicts including World War I, World War II, the Vietnam War, the Iran-Iraq War, the Gulf War, the Kosovo War, the Iraq War, and the Israel-Lebanon War. Further, there has been limited enforcement of state responsibility for environmental damage in the aftermath of these wars. Most of the existing post-conflict settlements fit squarely within a paradigm of victor’s justice. It is argued that such a situation has incentivised (or at least not dis-incentivised) belligerents to continue causing severe environmental damage. This is because a belligerent state seems to be able to avoid responsibility for environmental reparation if it can secure a victory in an armed conflict or manage to preserve its political power in international relations.
In order to improve current and future conditions for protecting the environment during armed conflict, it is argued that relevant international rules need to have a deterrent effect to discourage future belligerent states from causing severe environmental damage. This effect could be realized by allocating state international responsibility effectively with a transparent and fair mechanism. To achieve this goal, the reporting process of the UNSC, a forum where violations of international law and allocations of responsibility will be addressed, need to be modified. Such modification aims to make the UNSC’s reporting process more transparent and to afford due process by involving fact-finding missions conducted both by an independent mission established by the UNSC and by belligerent parties. With this more robust reporting procedure, it is expected that the UNSC will be able to allocate responsibility to the appropriate belligerent(s) in accordance to the extent of real damage that they have caused.