DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL
KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA
Volume 14  September—Desember 2013
ARTIKEL
Treaty Making Power in ASEAN: Legal Analysis on ASEAN Practices
Damos Dumoli Agusman
The Legal Implication of the Volcanic Ash Cloud Contingency Plan
Adrianus Adityo Vito Ramon
Global Governance in a Globalizing World: Do Globalization and Global
Governance Erode National Sovereignty?
Frassminggi Kamasa
Teinver v. Argentina: The Most Favored Nations Principle in a Multiple
Bilateral Investment Treaties Era
Nenda Inasa Fadhilah
RESENSI BUKU
Refleksi dan Kompleksitas Hukum Humaniter
Ratih Wulandari
ISTILAH HUKUM
i
Jurnal Hukum dan Perjanjian Internasional
OPINIO JURIS
Volume 14  September—Desember 2013
DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL
KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA
2013
Jurnal Hukum dan Perjanjian Internasional
OPINIO JURIS
Volume 14  September—Desember 2013
Diterbitkan oleh
Direktorat Jenderal Hukum dan Perjanjian Internasional
Kementerian Luar Negeri
Sejak Oktober 2009
Penanggung Jawab
Linggawaty Hakim, SH., LL.M
Raudin Anwar, SH., LL.M
Redaktur
Yoshi Iskandar, SH.; Kemal Haripurwanto, SH., LL.M; Amrih Jinangkung, SH., LL.M;
Elmar Iwan Lubis, SH.; Drs.Sukarsono; Sudarsono, SH., MM; Rofita, SH; Zainul Idris
Yunus, SE; Hendrar Pramudyo, SH.
Editor
Nenda Inasa Fadhilah, SH., LL.M.; Santa Marelda Saragih,SH., MH.; Ratih
Wulandari, SIP.; Vina Novianti, S.Hum.; Rike Octaviany, SH., LL.M.; M. Ferdien, SH.
Disain Grafis
Abdul Hayyi
Sekretariat
Uki Subki, S.Sos, M.Si.; Anisa Husna, S.Hum; Tasunah; Maisaroh, S.Sos.
Alamat Redaksi:
Sekretariat Direktorat Jenderal Hukum dan Perjanjian Internasional
Kementerian Luar Negeri
Jl. Taman Pejambon No. 6 Jakarta Pusat
Telp. +62 21 3846633 Fax. +62 21 3858044; Email: opiniojuris@kemlu.go.id
Jurnal Opinio Juris versi digital dapat diunduh di website
http://pustakahpi.kemlu.go.id/
Tulisan yang dimuat dalam Jurnal Opinio Juris adalah pendapat dan
analisis pribadi dari para penulis dan tidak mewakili pandangan/posisi
Kementerian Luar Negeri dan/atau Pemerintah Republik Indonesia.
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
DAFTAR ISI
Daftar Isi ..........................................................................................................v
Daftar Gambar .............................................................................................. vi
Pengantar Redaksi ...................................................................................... vii
Treaty Making Power in Asean: Legal Analysis on Asean Practices ... 9
Damos Dumoli Agusman
The Legal Implication of the Volcanic Ash Cloud Contingency Plan
.......................................................................................................................... 37
Adrianus Adityo Vito Ramon
Global Governance in a Globalizing World: Do Globalization and
Global Governance Erode National Sovereignty? ................................. 68
Frassminggi Kamasa
Teinver v. Argentina: The Most Favored Nations Principle in a
Multiple Bilateral Investment Treaties Era ........................................... 102
Nenda Inasa Fadhilah
RESENSI BUKU ......................................................................................... 131
Ratih Wulandari
ISTILAH HUKUM ..................................................................................... 135
TENTANG PENULIS ................................................................................ 138
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Vol. 14  September-Desember 2013
DAFTAR GAMBAR
Figure 1: The location of world volcanoes – in red ...................................... 43
Figure 2: Eruption column and umbrella ...................................................... 45
Figure 3: The damages on aircraft engine due to volcanic ash cloud ........ 48
Figure 4: The flow of information in ICAO IAVW ....................................... 52
Figure 5: Regional VAAC................................................................................. 53
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Vol. 14  September-Desember 2013
PENGANTAR REDAKSI
Di tahun ke-5 Volume 14 penerbitan Jurnal Opinio Juris tetap eksis
mempertahankan ciri khasnya sebagai Jurnal yang mengkhususkan diri
pada kajian dan tulisan dibidang hukum internasional. Redaksi Jurnal
Opinio Juris tidak saja berupaya mempertahankan dan meningkatkan
kualitas tulisan yang ada, namun juga menyajikan tulisan yang aktual
sesuai dengan perkembangan isu hukum internasional.
Jurnal Opinio Juris Volume 14 tahun 2013 dan volume sebelumnya
dapat pula dibaca dalam bentuk e-journal melalui website
http://pustakahpi.kemlu.go.id. Hal ini dimaksudkan agar para pembaca
yang tidak memperoleh hard copy-nya dapat mengakses dan terbuka luas
untuk publik.
Pada Volume 14 tahun 2013 ini, redaksi memuat empat tulisan
mengenai yaitu: ―Treaty Making Power ASEAN Legal Analysis on ASEAN
Pratices” oleh Damos Dumoli Agusman, ―The Legal Implication of the
Volcanic Ash Cloud Contingency Plan” oleh Adrianus Adityo Vito Ramon,
―Global Governance In A Globalizing World: Do Globalization And Global
Governance Erode National Sovereignty?” oleh Frassminggi Kamasa dan
―Teinver V. Argentina: The Most Favored Nations Principle In A Multiple
Bilateral Investment Treaties Era” oleh Nenda Inasa Fadhilah. Dalam
penyajian tulisan tersebut di atas, tergambar beberapa topik bahasan dari
Hukum Organisasi Internasional, Hukum Udara, Hukum Investasi dan
hubungan antara kedaulatan negara dan globalisasi yang semuanya
bernuansa Hukum Internasional.
Untuk mempertahankan ciri khas Jurnal Opinio Juris, kami
menampilkan Resensi Buku Refleksi dan Kompleksitas Hukum
Humaniter yang dikarang oleh Prof. KGPH. Haryomataram, SH., Brigjen
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Vol. 14  September-Desember 2013
(Purn) dan Istilah Hukum yang secara umum mendeskripsikan berbagai
istilah hukum yang dipilih secara khusus dan lazim digunakan sebagai
terms pada kajian Hukum Internasional.
Pada kesempatan ini, redaksi Opinio Juris juga hendak mengajak
para pembaca untuk turut berkontribusi serta memberikan saran dan
masukannya demi peningkatan kualitas Opinio Juris di masa mendatang
melalui email opiniojuris@kemlu.go.id.
Akhir kata, Redaksi Opinio Juris berharap semoga jurnal ini dapat
menjadi sarana dalam menyebarluaskan berbagai informasi, wacana dan
wadah sumbangsih pemikiran di bidang hukum dan perjanjian
internasional yang berkaitan dengan pelaksanaan hubungan luar negeri.
Terima kasih dan selamat membaca!
Redaksi Opinio Juris
viii
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Vol. 14  September-Desember 2013
TREATY MAKING POWER IN ASEAN: LEGAL
ANALYSIS ON ASEAN PRACTICES
Damos Dumoli Agusman
Abstrak
Dengan berlakunya Piagam ASEAN, ASEAN telah menjadi sebuah
organisasi internasional yang berdasarkan atas ketentuan hukum dan
memiliki kapasitas untuk melakukan tindakan hukum, salah satunya
untuk membuat perjanjian internasional. Akan tetapi, beberapa
pertanyaan muncul terkait hal tersebut, misalnya apakah Sekretaris
Jenderal ASEAN dapat membuat perjanjian internasional atas nama
negara-negara anggota, apa sajakah jenis perjanjian internasional yang
dapat dibuat dan bagaimanakah implikasi hukum penandatanganan
suatu perjanjian internasional oleh ASEAN atas keterikatan negaranegara anggotanya terhadap perjanjian tersebut. Tulisan ini akan
menganalisis praktik-praktik pembuatan perjanjian internasional oleh
ASEAN sebelum dan sesudah berlakunya Piagam ASEAN serta halhal yang perlu dibenahi oleh ASEAN dalam upaya memperkuat sistem
hukumnya, khususnya dalam hal pembuatan perjanjian internasional.
Keywords: ASEAN Charter, international law, treaty making power,
international organization, representation
Abstract
As the ASEAN Charter has entered into force, ASEAN has become an
international organization with legal basis and has a capacity to do any
legal conduct. One of them is the power to make an international
treaty. Furthermore, some questions arise regarding such power, for
instance, can the Secretary General of the ASEAN make an
international treaty on behalf of the ASEAN’s member countries, what
kind of international treaty that can be made, and how does the legal
implication for ASEAN’s member countries upon an international
treaty signed by the ASEAN. This paper will analyze practices of
international treaty making by the ASEAN before and after the
ASEAN Charter entered into force, and will suggest matters that need
to be solved by the ASEAN in its effort to strengthen its legal system,
particularly in making international treaty.
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Keywords: ASEAN Charter, international law, treaty making power,
international organization, representation
Since the entry into force of the ASEAN Charter in 2008, it is widely
said that ASEAN has moved from a loose organization to a rule-based
one. It implies that the activities of ASEAN shall be on the basis of law
applicable to the organization. ASEAN Charter as a treaty known to
international law will serve as a legal basis to all activities conducted by
ASEAN, both for internal and external objectives.
Unfortunately, ASEAN as an international organization for the
purpose of international law has not received much attention from
international legal scholars. Albeit its growing structure as a mature
international organization, it is hardly approached from international law
perspective. On the other hand, as commonly experienced by many
organizations alike, some legal questions may arise with regard to
ASEAN. Is ASEAN an international organization having legal capacity to
enter into a treaty? If yes, how does it exercise its treaty making power?
In order to answer these questions, it is worth exploring the defined
concept of ASEAN as subject of international law and what elements are
required to constitute an international organization for having quality as a
subject of international law. This paper attempts to discuss the practical
problem arising from its practices before the entry into force of ASEAN
Charter and explore the remaining potential conflict that might be
encountered in the future. This paper will demonstrate that the legal
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problems facing ASEAN treaty making power are those that have
encountered the International Law Commission when it dealt with the
problematic question of treaties concluded by international organizations.
The first is the question on the status of its members when ASEAN
concluded a treaty and the second is on the representation, in the sense of
whether ASEAN could conclude a treaty on behalf of its members. The
paper will explore the issue that needs to be addressed by ASEAN with a
view to strengthening its rule-based system as an organization,
particularly in treaty making regime.
A. ASEAN as an International Organization
ASEAN Charter endorses in Article 3 its legal personality by
providing that ASEAN, as an intergovernmental organization, is herebyconferred legal personality. The formulation is carefully drafted in a way
that the Charter is only confirming the legal fact that ASEAN is, and was
before, an intergovernmental organization having legal personality. It
must be held, that the personality under international law has been
already enjoyed by ASEAN before the Charter. Chesterman1 puts it
correctly when arguing that the fact that ASEAN now claims international
legal personality in the Charter does not mean it lacked it previously, nor
that it now possesses it in any meaningful way.
1
Chesterman, Simon, Does Asean Exist? The Association Of Southeast Asian Nations as
An International Legal Person, (2008) 12 SYBIL 199-211, at 199.
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From the legal writings and the jurisprudence it might be concluded
that the question as to whether international organizations are subject of
international law as well as the question on their legal capacity to enter
into treaties has been completely resolved either in theoretical or practical
level. 2 However, preconditions established by international law (objective
criteria) shall be met before an organization is recognized as international
organization for that purpose. 3 It is widely agreed that there are at least
two constituent elements required to form an international organization
status, i.e. a treaty establishing the organization and a permanent independent
organ detached from that of the founders. The ILC in its present works on the
responsibility
of
international
organizations
defines
international
organization as:
2
The ICJ in the most important case on this matter, i.e. Reparation for Injuries Suffered
in the Service of the United Nations Case, 1949, has affirmed that the United Nations is a
subject of international law and capable of possessing international rights and duties,
and that it has capacity to maintain its rights by bringing international claim, ICJ
Reports, 1949, pp.178-179. This established view was reaffirmed in ICJ Advisory
Opinion in Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt,2 1980, which is held that: International Organizations are subjects of international
law, as such, are bound by any obligations incumbent upon them under general rules of
international law, under their constitutions or under international agreements to which
they are parties.
3
Schermers, Henry G,, International Institutional Law, Leiden, Stijthoff & Noordhoff,
1980, p. 277, Reuter, Paul, International Institutions, London, George Allen & Unwin
Ltd, 1958, p. 21, Brownlie, I, Principles of Public International Law, Oxford, Fourth Ed.,
1990, pp. 681-682, Rama-Montaldo, 'International Legal Personality and Implied Powers
of International Organizations', (1970) XLIV BYIL 111, pp. 144-145, Arangio-Ruiz,
Gaetano, 'the Concept of International Law and the Theory of International Organization',
(1972) III RdC 419, pp. 676-677.
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“International organization” means an organization established
by a treaty or other instrument governed by international law
and possessing its own international legal personality.
International organizations may include as members, in addition
to States, other entities;4
When the two criteria apply to ASEAN, it appears that since its
inception through Bangkok Declaration in 1967 until 1976 ASEAN lacked
its legal personality. It was not a proper international organization in the
sense of international law since, although established by a treaty, it was
lacking the organ detached from its founders. It was merely a joint organ,
which acted on behalf of its members. The establishment of the ASEAN
Secretariat in 19765, gives effect to its legal status because the second
precondition, i.e. an organ detached from its founder has then been fulfilled.
Since then, ASEAN could be qualified an international organization for
the purpose of international law in the sense that it is a distinct entity
subject of international law.
4
Draft articles on the responsibility of international organizations, adopted by the
International Law Commission at its sixty-third session, in 2011, Article 2 (a).
5
Agreement on the Establishment of the ASEAN Secretariat, Bali, 24 February 1976,
http://www.asean.org/1265.htm.
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B. ASEAN Treaty Making Power
Since 1976 and before ASEAN Charter, ASEAN has exercised its
treaty making power. However, the rules of ASEAN prior to the ASEAN
Charter did not as yet contain any clear rules for regulating the conclusion
of treaties with other subjects of international law on its behalf, but the
principles have been laid down that the capacity to make treaties resides
in its plenary organ, i.e. ASEAN Ministerial Meeting. ASEAN external
relations will be the primary responsibility of the ASEAN Ministerial
Meeting, which will formulate, when appropriate in consultation with
relevant Ministers, guidelines for establishment of the machinery for the
formalization, supervision, suspension or termination of negotiations
with other governments and international organizations. According to
Bangkok Declaration 1967, external relations between ASEAN and third
countries and international organizations should have the approval of the
Foreign Ministers. The Chairman of the ASEAN Standing Committee will
be authorized to sign all agreements reached between ASEAN and third
parties.
The ASEAN Charter has provided general rules on ASEAN external
relation and under Article 41 (7) prescribes that ASEAN may conclude
agreements with countries or sub-regional, regional and international
organizations and institutions. The procedures for concluding such agreements
shall be prescribed by the ASEAN Coordinating Council in consultation with the
ASEAN Community Councils. Such procedures are still in intensive labour.
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i. Relation between Members and Treaties Concluded by ASEAN
At initial stage, and even until recently, confusion has come to fore
with regard to status of treaties6 concluded by the so-called ASEAN. In
this regard, one must be cautious in dealing with the term ASEAN. The
term of ASEAN in legal terms as a distinct entity detached from its
members is always confused with ASEAN as a merely collective noun for
all the members, which is frequently used in many ASEAN documents
and writings. The practices of ASEAN in concluding treaties with other
subjects of international law shows that the term ASEAN tends to be
interpreted as a collective noun of all the members instead of a distinct
entity. It could be seen for instance in the Cooperation Agreement
between the Member Countries of ASEAN and the EEC, 7 March 1980.
The agreement was signed by all foreign ministers of ASEAN member
states on one part and by President in office of the Council of the EC on
the other part. Thus, it is not a bilateral agreement between ASEAN as an
organization,- which has been incorrectly claimed as the first agreement
that it has signed as an international entity,- but merely a multilateral
between individual members of ASEAN and the EEC.
6
The term treaties in this paper will cover all formal instruments concluded by ASEAN,
such as agreements, MOUs, Arrangements, Exchange of Notes, and other designations
without making any distinction whether they are properly regarded as treaties for the
purpose of the Vienna Convention on the Law of Treaties.
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Another example could also be found in the exchange of letters
constituting an agreement establishing the Sectoral Dialogue between
ASEAN and the Republic of Korea. On one part this agreement was
signed by Minister of Foreign Affairs of the Republic of Korea and on the
other part by Minister for Foreign Affairs of Indonesia as Chairman of the
ASEAN Standing Committee. Looking at this participation clause alone,
one might assume that this agreement is concluded by ASEAN as a
proper distinct entity in pursuant to the rules of ASEAN. However, from
the terms of the agreement, it reveals that ASEAN in this case is merely a
collective noun of all the members since the word ASEAN refers to
ASEAN member countries. The Chairman of ASEAN Standing Committee
signed the letter on behalf of ASEAN member countries instead of
ASEAN. In this instance ASEAN is not a party and no legal effects
devolve upon it. One may be questioning whether ASEAN as a distinct
entity could conclude that particular treaty. The answer is obviously
negative. A dialogue between ASEAN and a third country is not a
bilateral relation between ASEAN as a distinct entity and the country
concerned, but a kind of multilateral relations in which the member states
of ASEAN individually involve. Thus, ASEAN as a distinct entity was
lacking capacity to deal with such a relation on its own behalf.
The term ASEAN as is envisaged in the Charter may pose an already
long confusion and appeared to be so when it was being discussed in the
various discussions in
the High
Legal Expert Group for the
implementation of Article 41 (7) of the Charter. This Article only states
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that ASEAN may conclude agreements with countries or sub-regional, regional
and international organizations and institutions. However, it does not define
the notion of ASEAN in terms of whether it is a distinct organization or
simply a joint collective of Member States.
From the legal perspective, ASEAN external relations under Article 47
(1) shall be distinguished into two different legal characters:
a. The relations between ASEAN member countries and a third
party where the status of each member country is as an
independent subject of international law. In this regard, the
term ASEAN is only used to refer to each member country as
collective members.
b. The relations between ASEAN as a subject of international
law, as a distinct subject separated from its members with a
third party. In this regard, member countries of ASEAN are in
the position as components of the ASEAN‘s organs (Standing
Committee, Committee, etc.).
On the first category, with regard to the relations between ASEAN as
collective members with a third party, it is often stated that ―ASEAN has
made numerous international agreements with other countries or
international organizations‖. However, when such agreements use the
term ASEAN, it will refer to each member country separately and forming
as a collective group without necessarily relinquishing its independent
status. This is reflected in the participation clause of such agreements
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where all members are, individually, required to put their respective
signatures in the agreement. For example, in the Cooperation Agreement
between the Member Countries of ASEAN and the EEC, 7 March 1980, all
members of ASEAN individually signed the agreement and for the EEC,
on the other hand, it was signed by its authorized representative, i.e.
President of the Council. In this agreement, each individual member
country entered into contractual agreement with EEC as an international
organization. In this case, ASEAN is not an organization as a distinct
subject independently from its members. It is a logical consequence of the
fact where the scope of the agreement is not within ASEAN‘s competence
as an independent international organization, but rests on the authorities
of the member countries.
On the second category, ASEAN has made numerous agreements in
its capacity as a distinct subject separated from its members, in which the
term ASEAN Secretariat is commonly used. The agreements made by
ASEAN as an international organization and on its own behalf are, among
others, as follows:
a. The Agreement relating to the Privileges and Immunities of the
ASEAN Secretariat, 20 January 1979, between ASEAN Secretariat and
Indonesia.
b. Agreement of Cooperation between the Association of Southeast
Asian Nations (ASEAN) and the United Nations Educational,
Scientific
and
September 1998.
18
Cultural
Organization
(UNESCO),
Jakarta
12th
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c. The Agreement on the Use and Maintenance of the Premises of the
ASEAN Secretariat, 15th March 1996, between ASEAN Secretariat and
Indonesia.
d. Memorandum of Understanding between the Secretariat of the
Association of Southeast Asian Nations (ASEAN) and the
Secretariat of the United Nations Economic and Social
Commission for Asia and the Pacific (ESCAP Secretariat).
e. Arrangement between the ASEAN Secretariat and the United
States Patent and Trademark Office (USPTO) on Cooperation
in the Field of Intellectual Rights, 19th April 2005.
f.
Memorandum of Understanding between the Secretariat of the
Association of Southeast Asian Nations (ASEAN) and the
Shanghai Cooperation Organization (SCO), 21st April 2005.
g. Memorandum
of
Understanding
for
Administrative
Arrangements, this memorandum of understanding (MoU)
will form the basis of Cooperation between the Association of
Southeast Asian Nations Secretariat and Asian Development
Bank (24th August 2006).
In the aforementioned agreements, ASEAN Secretariat acted on its
own behalf as an independent legal subject, separated from its member
countries. The Secretary General of ASEAN signed the agreements. This
position is a logical consequence to the fact that the substance of the
agreements is within the scope the ASEAN Secretariat competence.
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Therefore, from the execution of such agreements shall not arise any
obligation to its member countries, as they are not parties to the
agreements.
Two agreements that have been concluded by ASEAN on its behalf
are worth noting, i.e. the Agreement relating to the Privileges and
Immunities of the ASEAN Secretariat, 20 January 1979 and the Agreement
on the Use and Maintenance of the Premises of the ASEAN Secretariat, 25
November 1981. The parties to the respective agreements are on one part
ASEAN as a distinct entity detached from its members and, on the other
part, Indonesia. Although Indonesia is a member, its status vis a vis
ASEAN in this agreement is a distinct subject separated from the
personality of ASEAN. The participation clause of the agreements clearly
indicates that Secretary General ASEAN who signed the agreements
represents ASEAN per se not that of member states.
With regard to those agreements, ASEAN has a capacity to perform
all rights and obligations without necessarily being supported by its
member states. The matters covered by the agreements are concerning
administrative and diplomatic matters which are exclusively under
competence of ASEAN as a distinct entity. They are inter alia juridical
capacity of the Secretariat within Indonesian territory and the enjoyment
of privileges and immunities by the Secretary General and the staff
including the premises of the Secretariat.
These practices have shown that the relation between members and
treaties concluded by ASEAN as a distinct organization is merely ―third
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party‖ in the sense that they are not automatically bound by it. This legal
construction is compatible with the principle enshrined in the 1986
Vienna Convention on the Law of Treaties concluded by International
Organizations. The ILC in preparing that Convention was encountered
with the question of effects of treaties concluded by an organization on its
member states, which should be relevant to be regulated under the
present Convention. The Commission came out with a proposal which
was then under the Draft Article became Article 36 bis:
Article 36 bis
Obligations and rights arising for States members of an international
organization from a treaty to which it is a party.
Obligations and rights arise for States members of an international
organization from the provisions of a treaty to which that organization
is a party when the parties to the treaty intend those provisions to be
the means of establishing such obligations and according such rights
and have defined their conditions and effects in the treaty or have
otherwise agreed thereon, and if:
(a) the States members of the organization, by virtue of the constituent
instrument of that organization or otherwise, have unanimously agreed
to be bound by the said provisions of the treaty; and
(b) the assent of the States members of the organization to be bound by
the relevant provisions of the treaty has been duly brought to the
knowledge of the negotiating States and negotiating organizations.
The proposed draft became a most difficult part during the
negotiation in the Diplomatic Conference and was finally being rejected.
The proposed article was widely claimed as compatible solely in the light
of the case of the European Economic Community. Most views were in
favor of a default rule that member states should be third parties vis a vis
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treaties concluded by international organizations to which they are
members.7 Finally, the Conference provided only a saving-clause (Article
74, para. 3), which states that [t]he provisions of the present Convention shall
not prejudge any question that may arise in regard to the establishment of
obligations and rights for States members of an international organization under
a treaty to which that organization is a party. The formulation of this saving
clause received cautious reaction from many delegations by emphasizing
that it should not be understood as allowing any possibility of a treaty
concluded by an international organization producing any legal effects for
States members of the organization which were not parties to the treaty,
unless those States members expressly consented to accept the relevant
provisions of the treaty.8
During the drafting exercise on Vienna Convention on the Law of
Treaties by the ILC, an attempt had been made to enable a state or an
organ on behalf of one or more states to conclude a treaty to be binding
for those states concerned.9 Due to its complexity, the embryonic idea was
immediately aborted and did not even reach the drafting stage of the ILC.
The Commission left aside the question and considered it as a problem of
7
United Nations Conference on The Law of Treaties between States and International
Organizations or between International Organizations, Vienna, 18 February-21 March
1986, Official Records, Volume I, at 174.
8
United Nations Conference on The Law of Treaties between States and International
Organizations or between International Organizations, Vienna, 18 February-21 March
1986, Official Records, Volume I, at 19.
9
Yearbook of the International Law Commission, 1964, Vol. II, at 16.
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representation. The representation of one State by another State or by an
international organization or, more generally, of one subject of law by
another subject of law probably gives rise to complex problems of treaty
law.
However, when it dealt with the draft of the Vienna Convention on
the Law of Treaties concluded by International Organizations (the then
Vienna Convention of 1986) a similar question came out again. It was
expected that the Commission refrained, as did the United Nations
Conference on the Law of Treaties, from dealing with that question. If the
Vienna Convention of 1969 remained silent on the representation of the
corporate body by another corporate body, it is reasonable to adopt the
same position as regards treaties to which an international organization is
a party.10 It appeared however that it was not merely a question of
representation which it could easily set aside.
The delicate problem facing the conference has apparently posed the
similar confusion to the ASEAN practices. ASEAN practices have also
shown a ―peculiar‖ model, which is not compatible with the principle of
―third party‖ status of its members. There are several agreements which
were binding all members with a third party, concluded by the Secretary
General of ASEAN, such as the following:
10
Yearbook of the International Law Commission, 1977, vol. II, Part One, at 122.
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Vol. 14  September-Desember 2013
a. ASEAN – China Memorandum of Understanding on Cultural
Cooperation (Bangkok 3rd August 2005), signed by the Secretary
General of ASEAN;
b. Memorandum of Cooperation between the Department of Commerce
of the United States of America and the Association of Southeast
Asian Nations (ASEAN) Secretariat concerning Cooperation on Trade
Related Standards and Conformance Issues (5th April 2001), signed by
the Secretary General of ASEAN;
c. Memorandum of Understanding between the Governments of the
Member Countries of the Association of Southeast Asian Nations
(ASEAN) and the Ministry of Agriculture of the People‘s Republic of
China on Agricultural Cooperation (Phnom Penh, 2nd November
2002), signed by the Secretary General of ASEAN;
d. Memorandum of Understanding between the Governments of the
Member Countries of the Association of Southeast Asian Nations
(ASEAN) and the Government of the People‘s Republic of China on
Cooperation in the Field of Non-traditional Security Issues (Bangkok,
10th January 2004), signed by the Secretary General of ASEAN;
e. Memorandum of Understanding between the Governments of the
Member Countries of the Association of Southeast Asian Nations
(ASEAN) and the Government of the People‘s Republic of China on
Transport Cooperation (Vientiane, 27nd November 2004), signed by
the Secretary General of ASEAN;
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f.
Vol. 14  September-Desember 2013
Memorandum of Understanding between the Governments of the
Member Countries of the Association of Southeast Asian Nations
(ASEAN) and the Ministry of Agriculture of the People‘s Republic of
China on Agricultural Cooperation (Cebu, 14th January 2007), signed
by the Secretary General of ASEAN;
These agreements pose various legal questions and perhaps reflect
two legal scenarios. Could it be presumed that ASEAN as a distinct
organization is entitled to bind its members into a treaty concluded by it?
Are the scopes of cooperation contained in the agreements exclusively
under ASEAN competence as a distinct personality? Two scenarios might
be relevant, first that ASEAN in this regard is a distinct personality
performing competences that have been transferred to it, or secondly,
ASEAN is merely acting on behalf of its members for which ASEAN itself
as a distinct personality is not bound. The second scenario is a question of
representation, which will be discussed, in the next part.
Whatever scenario may apply, these agreements are not legally
compatible to what has been cautiously envisaged by the Vienna
Convention of 1986. Article 36 bis proposed at the Vienna Conference was
claimed as fitting to the supranational model such European Union,
where some sovereign competences have been transferred to the
organization. Even under the EU Law, the Union cannot conclude treaties
which competences are not exclusively under it. In the event where
competence is shared between the organization and its members, both can
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become parties. Such an agreement is known, in the EC model, as a
―mixed agreement‖.11
In relation to ASEAN capacity to conclude treaties, a legal question
has been put forward to the 23rd ASEAN Standing Committee Meeting
1991, with respect to the possibility of ASEAN to accede to the 1987
Montreal Protocol on Substances that Deplete the Ozone Layer. The
meeting rightly holds that ASEAN did not possess sufficient legal
capacity to accede to that Protocol since ASEAN has no competence in
respect of matters governed by the Convention or its protocol. ASEAN
per se could not carry out general obligations as provided for within Art.
2 of the Convention since those matters fall into competence of respective
member states and such competence is never being transferred to
ASEAN.
Within the legal principle that was finally adopted under the current
law of treaties, one may consider that the listed agreements are peculiar
on some basic legal reasons. First, it is lacking procedural requirement for
the Vienna Convention 1969 principle of ―consent to be bound by a
treaty‖ since it is not the member itself establishing its consent but
another third party. It is worth taking into account that international law
does not recognize the practices where a state can delegate its treaty
11
Verwey, Delano, The European Community, the European Union and the International
Law of Treaties, Asser Press, 2004, p. 155-208 and Keefe, David and Schermers, Henry
G, Mixed Agreements, Netherlands, 1984.
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making capacity to another subjects of international law to act for and on
behalf of that state to establish consent to be bound by an international
agreement notwithstanding the question of ―representation‖ which will
be discussed later. Second, the treaty making capacity is an integrated
part of state sovereignty and the exclusive domain of national authority.
Even the European Commission (EC) practices, which have become
supranational and integrated, it can only sign agreements in which its
members have transferred the competence to the EC Council.
It is obvious that in concluding such legally incompatible ASEAN
agreements as listed-above, the Secretary General of ASEAN and the
member states do not intend to perceive ASEAN a supranational model,
which can bind the members. It is highly presumed that such practices
could happen due to a lack of legal awareness with regard to the meaning
of ASEAN as a distinct personality and be exacerbated by the spirit of
―ASEAN Way‖, which tends to sacrifice the legal premises for political
consensus and ASEAN conveniences.
ii. The Problem of Representation
The problem of representation is a subject of debate under the Law of
Treaties. The question arises whether a subject of international law may
act on behalf of other subjects to conclude a treaty for the latter. The
question appears to be closely related, albeit distinguishable, to the
problem of the status of member states vis a vis treaties concluded by their
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Vol. 14  September-Desember 2013
organization in a way that the organization may be construed as acting on
behalf of its members.
This question of representation had been discussed by the ILC in
drafting the Vienna Convention on the Law of Treaties of 1969. The
Commission finally left aside the question and considered it as a problem
of representation rather than the Law of Treaties. The representation of
one State by another State or by an international organization or, more
generally, of one subject of law by another subject of law probably gives
rise to complex problems of treaty law.
The question of representation, by which one binds another states to a
treaty, becomes complex and untenable in the current globalization. The
question of representation is not only complex at international level but
also at national/constitutional level. Democratization at national level
under globalization is characterized by the increasing independent
powers invested with the various organs of a state, coupled with the
increasing role of individuals vis a vis their state, has affected the right of
legation and posed a problem of democratic accountability of any treaty
concluded by a state. The separation of powers, i.e. executive, legislative,
judicative has become strict so that it raises question as to whether the
executive can represent legislative and judicative interest with relations to
other states. Under these circumstances, treaty making power as
traditionally invested with executive branch is under intensive question
and states become cautious in defining and regulating the executive treaty
making exercises.
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Indonesia under democratization and constitutional consolidation
would be encountered with constitutional difficulty with the question of
representation. The sovereignty principle on ―consent of state‖ would be
at stake when representation takes place. Indonesian Constitution 1945
and the Law No. 24 Year 2000 on Treaties have not paved the way for
another state or international organization to bind Indonesia to a treaty.
There is no precedent under Indonesian practices where government
submits to a parliament for ratification a treaty signed by another
sovereign power to be binding upon Indonesia. None even imagines that
it may happen in the current constitutional context.
An agreement signed by the Secretary General of ASEAN on behalf of
member countries, in principle, is not binding member countries on the
basis that the requirement of ―consent to be bound by a treaty‖ by
Indonesia in accordance with Article 11 of Vienna Convention 1969 on the
Law of Treaties and the Law of 24 Year 2000 has not been fulfilled. In this
case there is no expressed consent from its individual members to be
bound to the agreement. The very fact that its members are said to having
authorized the Secretary General of ASEAN to do so cannot be invoked as
legally sufficient for establishing consent to be bound by a treaty by the
member state, as required by the Vienna Convention.
Under Indonesian law, the problem of ―Full Power‖ for expressing the
consent of the State to be bound by a treaty arises. If an international
agreement signed by the Secretary General of ASEAN and assumed that it
is binding for Indonesia, it will be construed that the Secretary General
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has obtained a full power from Indonesia. Full power is a constitutional
power and only presented to the national officials. Granting full power to
an international organization is not an accepted practice according to
Indonesian Law of Treaties.
Based on these principles, a country cannot ratify a legal act
conducted by another subject of international law. In this regard, for an
agreement, which is signed by the Secretary General of ASEAN or an
appointed official of a member country and requires ratification, the
members are not in a legal position to ratify the foresaid agreement. As
ratification means ―to confirm the conduct of its representative who is
signing an agreement‖, it would be peculiar if member states, through
their national mechanism, ratify the conduct of the foreign officials.
Further consequence is that a member state as a state party does not have
the direct competent authority to conduct a legal act in relation to the
agreement
itself,
such
as
invalidity;
termination;
suspension;
amendments; and modification. Such legal acts can only and have to be
conducted through and under the approval of the Secretary General as
the signatory party.
ASEAN has abundant practices concerning the problematic situation.
Adding to the agreements listed-above, one may look at the
Memorandum of Understanding between the Governments of the
Member Countries of the Association of Southeast Asian Nations
(ASEAN) and the Government of Australia on the ASEAN - Australia
Economic Cooperation Program (AAECP) Phase III (Bangkok, 27th July
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Vol. 14  September-Desember 2013
1994). For ASEAN signed by H.E. Surin Pitsuwan, Deputy Minister of
Foreign Affairs, Acting Minister of Foreign Affairs of Thailand.
On the contrary, ASEAN has also experienced a situation where
member states assumed representation despite ASEAN as a distinct
personality not really requiring it. In 1985 ASEAN was authorized to
conclude agreements on cultural matters with UNDP on ASEAN Training
Course for Drug Rehabilitation Professionals and on ASEAN Law
Enforcement Training Course. In this case ASEAN is assigned to conclude
those agreements but again not on its behalf but on behalf of its members.
It only performs its task as coordinator and it is the members who
implement the training courses. If one looks at the project documents on
such ASEAN training courses, it might be agreed that, instead of its
members, ASEAN per se could be a party to the agreements. It is firstly
because the conclusion of those agreements are in accordance with the
objectives of ASEAN as specified within Bangkok Declaration, thus, it has
competence in respect of matters governed by the agreements, and
secondly, ASEAN as an entity could undertake the programs as covered
by the agreements without necessarily involving the personalities of its
members.
C. ASEAN Treaty Making Power under ASEAN Charter and its Rules
As indicated in the previous part, ASEAN Charter provides specific
rules on treaty making power. It is prescribed by Article 41 (7) that the
procedures for concluding such agreements shall be prescribed by the
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Vol. 14  September-Desember 2013
ASEAN Coordinating Council in consultation with the ASEAN
Community Councils. The set of procedures is under negotiation by the
High Legal Experts Group, which consists of legal officials from member
states. From the Law of Treaties perspective, such procedures are
tantamount to the rules of the organization as referred to by the Vienna
Convention of 1986.
The procedures are expected to make a clear distinction on the
conclusion of agreements concluded by ASEAN as a distinct personality
and those that are concluded by all ASEAN member states collectively.
The critical issues worth exploring would be to what extent ASEAN may
be entitled to conclude treaties on its own behalf. This is the problem of
scope of competences to be conferred to ASEAN for it to be subject
matters of treaties it concludes. There must be a clear rule and principle
for ASEAN concerning the entitled subject matters, which are and not
within its competences. At least there must be a component organ under
ASEAN whose task is to determine whether or not a subject matter could
be contained in a treaty concluded by ASEAN. The rule is necessary in
order to ensure that ASEAN concludes a treaty containing matters within
its competences, otherwise, it requires collateral participation from its
members as envisaged by so called ―mixed agreements‖.
It should cover the matter as required by 1986 Vienna Convention to
be regulated by the rules of organization. The Convention emphasizes the
determining role of the ―rules of the organization‖ to govern the acts of
organization in concluding a treaty. The rules mean, in particular, the
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Vol. 14  September-Desember 2013
constituent instruments, decisions and resolutions adopted in accordance
with them, and established practice of the organization. The Convention
makes references to the rules of the organizations in dealing with some
aspects of treaty making, which shall be provided by ASEAN rules,
among others:
1. The use of terms in the present Convention are without prejudice to
the use of those terms or to the meanings which may be given to them
in the internal law of any State or in the rules of any international
organization. The ASEAN Charter uses the term ―agreements‖ instead
of ―treaties‖ and therefore should not affect the validity of the
instruments under such different term.
2. The capacity of an international organization to conclude treaties. It
prescribes a regime that governs what subject matters that are within
and beyond the scope of ASEAN Treaty making power. This
particular issue is concerning power sharing between member states
and the organization, which will determine the scope of competence
of ASEAN in making treaties. Such competence is normally governed
by constitutional provisions of the organizations. It appears that
ASEAN Charter provides no provision on this competence and
therefore an implied power might be presumed in such manner in
accordance with the purposes and objectives of ASEAN.
3. Full powers.
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4. Act of Organization to express its consent to be bound by a treaty in
the form of Signature, Act of Formal Confirmation (corresponding to
that of ratification by a State), Accession, Accession and Acceptance.
5. Acceptance to Treaties providing for rights and obligations for third
states or third organizations.
6. Amendments of a provision of a treaty.
7. Notifications with respect to invalidity, termination, withdrawal from
or suspension of the operation of a treaty.
8. The appointment of arbitrators or conciliators under dispute
settlement mechanism.
As ASEAN has grown into a mature rule-based organization on the
basis of its Charter and having in mind that its role is becoming expansive
at international level, it is inevitable that ASEAN as a subject of
international law should be an international law-abiding organization. It
this regard, international legal norms governing the relations between
and by international organization shall be respected. Therefore,
compatibility of ASEAN rules with the international norms becomes
necessary.
Daftar Pustaka
Bowett, D.W, The Law of International Institutions, Stevens, 1982.
Cf. Holloway, Kaye, Modern Trends in Treaty Law, London, Stevens & Sons, 1967,
Chesterman, Simon, Does Asean Exist? The Association Of Southeast Asian Nations as
An International Legal Person, (2008) 12 SYBIL 199-211,
Dale, W, 'Is the Commonwealth an International Organization?', (1982) 31 ICLQ 451
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Vol. 14  September-Desember 2013
Elias, T.O., The Modern Law of Treaties, Leiden, A.W. Sijthoff, 1974,
Fifield, Russell H, National and Regional Interests in ASEAN, Singapore, ISEAS.
G. E. do Nascimento e Silva, “The 1986 Vienna Convention and the Treaty-Making
Power of International Organizations”, German Yearbook of International Law,
vol. 29, 1986,
G. Gaja, “A „New‟ Vienna Convention on Treaties Between States and International
Organizations or Between International Organizations: A Critical
Commentary”, British Yearbook of International Law, vol. 58, 1987,
Greig, D.W., International Law, London, Butterworth, 1970,
H. Isak & G. Loibl, “United Nations Conference on the Law of Treaties Between States
and
International
Organizations
or
Between
International
Organizations”, Österreichische Zeitschrift für öffentliches Recht und
Völkerrecht, vol. 38, 1987,
Indorf, Hans H, Impediments to Regionalism in Southeast Asia, Singapore, ISEAS, 1984,
Indorf, Hans. H, ASEAN: Problems and Prospects, ISEAS, 1975, p. 9.
K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention
on the Law of Treaties, Vienna, Springer Verlag, 1971 (Österreichische
Zeitschrift für öffentliches Recht, Supplementum 1).
K. Zemanek, “Agreements Concluded by International Organizations and the Vienna
Convention on the Law of Treaties”, University of Toledo Law Review, vol. 89,
1971,
Keefe, David and Schermers, Henry G, Mixed Agreements, Netherlands, 1984
Mann, F.A., 'Reflection on a Commercial Law of Nations', (1957) XXXIII BYIL 20,
O'Connell, D.P.O, International Law, London, Stevens, Second Ed., 1970, pp. 199-200.
Okeke, Chris N, Controversial Subjects of Contemporary International Law, Rotterdam,
University Press, 1974,
Rama-Montaldo, 'International Legal Personality and Implied Powers of International
Organizations', (1970) BYIL, XLIV, 111,
Report of the ILC in (1967) 61 AJIL 248,
Report of the ILC' in (1967) 61 AJIL 248, p. 288.
Reuter, Paul, International Institutions, George Allen & Unwin Ltd, London, 1958,
Reuter, Paul, Introduction to the Law of Treaties, translated by Jose Mico and Peter
Haggenmacher, London, Pinter Publisher, 1989,
Schermers, Henry. G, International Institutional Law, Netherlands, Sijthoff &
Noordhoff, 1980,
Seyersted, Finn, 'Applicable Law in relations between Intergovernmental Organizations
and Private Parties', (1967) III RdC 122.
Simmonds, K.R., 'The Evolution of the External Relations Law of the European
Economic Community', (1979) ICLQ 28,
Sinclair, I, The Vienna Convention on the Law of Treaties, Manchester, University Press,
Second Ed.
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Vol. 14  September-Desember 2013
Sukrasep, Vinita, ASEAN in International Relations, Bangkok, Institute of Security and
International Studies, 1989,
Thammes, A.J.P, 'Decision of International Organs as a Source of International Law',
(1958) II RdC 261,
Verwey, Delano, The European Community,the European Union and the International
Law of Treaties, Asser Press, 2004,
Von Glahn, Gerhard, Law among Nations, New York, MacMillan, Third Ed., 1976.
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Vol. 14  September-Desember 2013
THE LEGAL IMPLICATION OF THE VOLCANIC ASH
CLOUD CONTINGENCY PLAN
Adrianus Adityo Vito Ramon
Abstrak
Beberapa insiden penerbangan yang disebabkan oleh awan panas
gunung berapi telah menimbulkan dampak negatif terhadap
penerbangan internasional, misalnya dalam kasus letusan Gunung
Galunggung, Gunung Redoubt, Gunung Pinatubo, dan Gunung
Eyjafjallajökull. Sehubungan dengan hal tersebut, komunitas
internasional telah mengambil langkah-langkah yang diperlukan dan
menyusun berbagai contingency plan untuk menanggulangi insiden
serupa serta untuk memastikan keselamatan penerbangan. Tulisan ini
akan menganalisis implikasi hukum atas contingency plan menghadapi
awan panas gunung berapi dalam kaitannya dengan hak dan kewajiban
para pemangku kepentingan dalam industri penerbangan
internasional. Selain itu, tulisan ini juga akan memberikan analisa
umum mengenai contingency plan yang ada saat ini, dari tingkat
multilateral, kawasan dan nasional, serta memberikan rekomendasi
bagi penyusunan contingency plan yang lebih baik.
Kata kunci: awan abu vulkanis, rencana tanggap darurat, ICAO,
keselamatan penerbangan, tanggung jawab, Konvensi Chicago.
Abstract
Several aviation incidents caused by hot cloud of volcanic ash has
brought about negative effects on international aviation, such as the
eruption of Mount Galunggung, Mount Redoubt, Mount Pinatubo,
and Mount Eyjafjallajökull. Therefore, international community has
taken necessary measures to set up various contingency plans to
overcome such incidents and to assure the aviation safety. This paper
will analyze legal implication on contingency plan in overcoming hot
cloud of volcanic ash related to the rights and obligations of the
stakeholders in international aviation industry. Moreover, this paper
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Vol. 14  September-Desember 2013
will generally analyze prevailing contingency plan as well, at
multilateral, regional, and national level; and will suggest
recommendations on how to make a good contingency plan.
Keywords: volcanic ash cloud, contingency plan, ICAO, aviation
safety, liability, Chicago Convention
I.
INTRODUCTION
On 24 June 1982, a British Airways flight BA009 was flying out from
London heading for New Zealand with a stopover in Kuala Lumpur and
Perth.12 The flight was a Boeing 747-200 (G-BDXH) aircraft13 piloted by
Captain Eric Moody14 who took-over the flight in Kuala Lumpur.15 The
flight brought 247 passengers and 15 crews.16 At approximately 240 miles
south-east of Jakarta,17 while cruising at an altitude of 37,000 feet, passing
the Indonesian island of Java, when suddenly the flight encountered the
St. Elmo fire18 which was resulted from ‗a discharge of static electricity.‘19
* The views and opinions expressed in this article are those of the author.
12
Zoe Brennan, The Story of BA flight 009 and the Words Every Passenger Dreads. (29
January 2007) Daily Mail <http://www.dailymail.co.uk/news/article-431802/The-storyBA-flight-009-words-passenger-dreads-.html#ixzz1qJml4WIj>.
13
Accident Description, Aviation Safety Network <http://aviationsafety.net/database/record.php?id=19820624-0>.
14
Zoe Brennan, Above n 1.
15
Ibid.
16
Accident Description, Above n 2.
17
Ibid.
18
When Volcanic Ash Stopped a Jumbo at 37,000ft (15 April 2010) BBC News Magazine
< http://news.bbc.co.uk/2/hi/uk_news/magazine/8622099.stm>.
19
Ibid.
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Consequently, all four engines of the aircraft failed abruptly20 and
accordingly, the aircraft glide downward to 12,000 feet.21 Fortunately, the
flight crew was able to restart three engines back.22 That was enough to
divert the flight to Jakarta where it made an emergency landing.23 The
aforementioned descriptions, arguably, illustrates the first recorded
incident of the interferences of volcanic ash cloud towards the aviation
safety.
Another incident was recorded on 15 December 1989, involving a
KLM flight KL867 from Amsterdam to Tokyo with a scheduled stopover
in Anchorage.24 The Flight was Boeing 747-400 (PH-BFC)25 aircraft piloted
by Captain Karl van der Elst.26 There were 231 passengers and 14 crews
onboard the flight.27 Around 75 miles northwest of Anchorage, the flight
flew through volcanic ash clouds from the eruption of Mount Redoubt.28
Consequently, all four engines of the aircraft were suddenly failed29 and
20
Accident Description, Above n 2.
When Volcanic Ash Stopped a Jumbo at 37,000ft, Above n 6.
22
Ibid.
23
Ibid.
24
Richard Witkin, Jet Lands Safely After Engines Stop in Flight Through Volcanic Ash
(16 December 1989) The New York Times < http://www.nytimes.com/1989/12/16/us/jetlands-safely-after-engines-stop-in-flight-through-volcanic-ash.html>.
25
Accident Description, Aviation Safety Network <http://aviationsafety.net/database/record.php?id=19891215-1>.
26
Larry Campbell, A look back at Alaska volcano’s near-downing of a 747 (18 April
2010) Herald Net <http://www.heraldnet.com/article/20100418/NEWS02/704189878>.
27
Accident Description, Above n 14.
28
Richard Witkin, Above n 13.
29
Ibid.
21
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Vol. 14  September-Desember 2013
the aircraft descended rapidly leaving 25,000 feet to 13,000 feet in a mere
12 minutes.30 It was also reported that there was smoke in the cabin as
well.31 Fortunately, similar with the previous incident, the flights crews
succeed in reviving all engines32 and land the aircraft safely in
Anchorage.33
During the after-flight check of flight BA009, it was found that
microscopic particle of the eruption of volcano of Mount Galunggung,
had damaged essential parts of the engine components, in all four
engines.34 Similarly, the volcanic ash cloud had also inflicted engines
failures on the KLM flight.35 A closer analysis reveals that both aircrafts
suffered damages from the ‗sandblast‘ of the volcanic ash including in the
windshield as well as in the avionics system of the aircraft.36
Both incidents had arguably highlighted the dangerous consequences
of the volcanic ash cloud may cause for aviation safety. As a result, the
international community in multilateral, regional as well as domestic
level had established various contingency plans to ensure the safety of
aviation from the damaging effect of volcanic ash cloud. Those plans may
vary from a mere warning in the notice to airman (NOTAM) to ultimately
30
Larry Campbel, Above n 15.
Richard Witkin, Above n 13.
32
Ibid.
33
Accident Description, Above n 14.
34
When Volcanic Ash Stopped a Jumbo at 37,000ft, Above n 6.
35
Richard Witkin, Above n 13.
36
Ibid.
31
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Vol. 14  September-Desember 2013
shutdown an entire airspace. All of those actions will obviously
implicated legal consequences for the entire stakeholder involved in the
aviation industry.
This research will analyse the legal implications of the volcanic ash
cloud contingency plan for all stakeholders in the aviation industry. It will
provide a general analysis of the existing contingency plans. The research
will first discuss the negative impact of volcanic ash cloud towards
aviation safety. It will analyse the process of the volcano eruption, the
materials which comprised volcanic ash cloud and its damaging effects
towards aircraft. It will subsequently see various existing ash cloud
contingency plans. Finally, it will then analyse the legal implications of
the contingency plans vis a vis various stakeholders in the aviation
industry.
II.
THE IMPACT OF THE VOLCANIC ASH CLOUD FOR
INTERNATIONAL AVIATION
A volcano is a mountain which assembled ‗around a vent that
connects with reservoirs of molten rock below the surface of the Earth.‘37
Its activity is resulted from ‗the buoyancy and gas pressure‘ which push
the molten rock upward and inflicts an event known as volcano
37
Robert I Tilling, Volcanoes (12 December 1999) United States Geological Survey
<http://pubs.usgs.gov/gip/volc/text.html>.
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Vol. 14  September-Desember 2013
eruption.38 In the event of a volcano eruption, the pushed molten rock will
be discharge from the crater ‗as non-explosive lava flows‘.39 Alternatively,
the molten rock may also be projected into the air to certain altitude form
the infamous volcanic ash cloud.40
There are approximately 1,500 active volcanoes around the world
today.41 Five hundred among those volcanoes had been erupted at least
once in history42 with an average of fifty five to sixty volcanic eruptions
annually.43 The majority of those volcanos are located along the edge of
the continental plate forming a continuous string of line known as the
volcanic ring of fire.44
38
Ibid.
Ibid.
40
Ibid.
41
Volcanoes (2 December 2009) European Space Agency
<http://www.esa.int/SPECIALS/Space_for_our_climate/SEM3XU2VQUD_0.html>.
42
Volcano Environments (5 February 1997) United States Geological Survey
<http://pubs.usgs.gov/gip/volc/environments.html>.
43
Jos van Geffen, et al, „An Alert System for Volcanic SO2 Emissions Using Satellite
Measurements‟ (Paper presented at 2009 EUMETSAT Meteorological Satellite
Conference, Bath, England, 21 – 25 September 2009) 3.
44
Ibid.
39
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Vol. 14  September-Desember 2013
45
Figure 1 the location of world volcanoes – in red
There are several types of volcanic eruption. Among those types, the
aviation safety might arguably most impacted by the phreatic eruption
which contains water in-mixture with lave and the plinian type of
eruption which potentially projected a large amount of volcanic ash cloud
into the air.46 Additionally, vulcanologist had also developed the Volcanic
Explosivity Index (VEI) to determine the magnitude of the volcanic
eruption.47 It has nine categories ranging from VEI 0 to VEI 8.48
45
Active Volcanoes and Plate Tectonics, "Hot Spots" and the "Ring of Fire" (1 February
2003) United States Geological Survey
<http://vulcan.wr.usgs.gov/Glossary/PlateTectonics/Maps/
map_plate_tectonics_world.html>.
46
John Watson, Types of Volcanic Eruptions (5 February 1997) United States Geological
Survey <http://pubs.usgs.gov/gip/volc/eruptions.html>.
47
International Civil Aviation Organization (ICAO), Manual on Volcanic Ash,
Radioactive Material and Toxic Chemical Clouds 2nd ed, (2007) International Civil
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The volcanic ash cloud produced by the eruption may also comprised
various shapes and sizes of sharp silicates glasses,49 feldspar, quartz,
pyroxene,50 aluminium, iron, calcium, and sodium51 which are abrasive
and accordingly may imposed considerable damages towards the
aircraft.52 Furthermore, the volcanic ash cloud also contain various gasses
includes water vapour, chlorine, hydrogen sulphide, nitrogen oxides53 as
well as sulphur dioxide (SO2) gas which very dangerous to the human
health54 and extremely corrosive toward metal compound.55 However,
there is a continuing disagreement on the precise measurement and
composition as well as the actual contact time for the aforementioned
material might be deemed to be hazardous towards aviation safety.56
During a volcanic eruption, the eruption column may reached to the
cruising altitudes of an aircraft57 and forms the umbrella of the ash
Aviation Organization Doc 9691–AN/954
<http://www.paris.icao.int/news/pdf/9691.pdf>, I-1-1 [1.1.1].
48
Ibid, I-1-3.
49
Ibid, I-2-1 [2.1.1].
50
Thomas J Casadevall, „Volcanic Hazards and Aviation Safety: Lesson from Past
Decade‟ [1993] (May) Flight Safety Digest 1, 4.
51
ICAO, Above n 36 I-2-1 [2.1.1].
52
Ibid.
53
Ibid.
54
Jos van Geffen, et al, Above n 32, 3.
55
ICAO, Above n 36, I-2-2 [2.1.4].
56
Karsten Theil, „What are the safety regulations regarding volcanic ash and why?‟
(Paper presented at Atlantic Conference on Eyjafjallajökull and Aviation, Keflavik,
Iceland, 15 and 16 September 2010), 11.
57
ICAO, Above n 36, I-2-3 [2.2.1.1].
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plumes which comprised the early stage of the volcanic ash clouds.58 The
ash plumes in the umbrella parts of the eruption column will then travel
and disperse into various altitudes and directions, subject to the current
weather conditions, bringing various volcanic materials and gasses.59
There were also evidences of ‗electrical activities‘ inside the ash clouds
column60 manifested in the form of lightning and St. Elmo fire as seen in
the BA009 incident.
Umbrella
Eruption column
Figure 2 eruption column and umbrella
61
The negative consequences of the volcanic ash cloud towards aircraft
are further categorized into several classifications. One of those
categorized the stage of the materialization of the effects.62 There are
effects which directly felt by the aircraft63 which include damages on the
58
Ibid, I-2-9 [2.4.1].
Ibid, I-2-10 [2.4.1].
60
Ibid, I-2-9 [2.3.1].
61
Ibid, I-2-5, Figure 2-4.
62
Thomas J Casadevall, Above n 39.
63
Ibid.
59
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windows, external navigational lights, air supply system and on the
fuselage.64 The volcanic ashes may also intrude the air supply system of
the aircraft and significantly danger the safety of the passengers and
crews with polluted air.65 Another significant damage in these categories
is engine failure from the erosion of the engine components and from the
scrape of the engine component with the sharp volcanic material or from
the massing of volcanic materials inside the engine and clog the flow of
the engine parts.66
Other damages may not as obvious and might need some time until it
become noticeable. The chemical composition of gasses in the volcanic ash
clouds may potentially inflicted corrosion on various parts of the aircraft
which need some time to occur.67 The corrosion may cause significant
structural failures of the aircraft body. This type of damage requires a
continuous check-up of the aircraft since the damages might only be
reveal for sometime after the actual exposure.
Another classification focussed on the severity of the volcanic ash
cloud impact toward the aircraft which being categorized into six
classes.68 It started from Class 0, the least severe of the impact until Class
64
Ibid.
Ibid, 5.
66
Ibid.
67
Ibid.
68
ICAO, Above n 36, Appendix G-8.
65
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5, the most severe consequences.69 Class 0 marked with sulphuric odour
in the cabin and ‗electrostatic discharge‘ usually in the form of St. Elmo‘s
fire on the exterior without any considerable damage towards the
aircraft.70 Class 1 is manifested in the form of ‗light dust in cabin‘ and the
variation on the ‗exhaust gas temperature,‘.‘71 Class 2 sees the occurrence
of ‗heavy cabin dust,‘ the intrusion of dusk into the air system, exterior
damages, include abrasion, frosting or breaking of windows, minor flight
instruments failures and the massing of ashes in the engines.72 Class 3
marked with the ‗vibration of engines,‘ a severe instruments failures,
intrusion of ashes into the hydraulic system, and electrical failures.73 Class
4 is sees momentary engine failure which able to be revived.74 Class 5 is
the most severe effect of volcanic ash. It sees ‗engine failure or other
damage leading the aircraft to crash.‘75
69
Ibid.
Ibid.
71
Ibid.
72
Ibid.
73
Ibid.
74
Ibid.
75
Ibid.
70
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Compressor blade
edge erosion from
the sharp volcanic
material
Volcanic
materials melt in
the combustion
chambers
Vol. 14  September-Desember 2013
The
accumulation
of the melted
volcanic
materials in the
turbine
Figure 3 the damages on aircraft engine due to volcanic ash cloud
76
Looking at the examples provided in the introduction, both incidents
arguably categorized as Class 4 incident. It was understood that the
British Airways flight BA009 had experienced significant damages in
various parts of the engines caused by extensive erosion and clogging of
the volcanic materials into the engines system77 as well as considerable
exterior damages, including the flight deck windshield and various parts
of the fuselage.78 Likewise, the KLM flight had also endured various
degrees of damages in its four engines which caused by the intrusion and
76
Airbus Flight Operations Briefing Notes Operating Environment Volcanic Ash
Awareness‟ (September 2006) Airbus
<http://www.airbus.com/fileadmin/media_gallery/files/safety_library_items/AirbusSafety
Lib_-FLT_OPS-OPS_ENV-SEQ06.pdf>.
77
Thomas J Casadevall, Above n 39, 1.
78
Ibid.
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blockage of volcanic materials.79 Its fuselage also suffered considerably
from the scrapes of the volcanic materials.80
From 1953 until 2009, there were 129 reported incidents of volcanic
ash clouds encounter with aircraft.81 The data is gathered by the United
States Geological Survey and shared to various related institution,
including to the ICAO International Airways Volcano Watch Operations
Group.82 Among those reported incidents, the majority, approximately
75% of all reported incidents, were categorized in Class 0 until Class 2
incidents.83 Fortunately, there is yet to be a Class 5 incident occurred.84
Additionally, volcanic ash clouds may also effected others element of
the aviation industry. The Volcanic ash clouds may also have the
potential to significantly undermine the operation of the airport.85 The
79
Ibid.
Jos van Geffen, et al, Above n 32, 2.
81
Marianne Guffanti, T J Casadevall, and Karin Budding, Encounters of Aircraft with
Volcanic Ash Clouds; A Compilation of Known Incidents, 1953–2009 (2010) U.S.
Geological Survey Data Series 545 <http://pubs.usgs.gov/ds/545>.
82
Overview of Database on Encounters of Aircraft with Volcanic Ash-Clouds. Fifth
Meeting of the ICAO International Airways Volcano Watch Operations Group Agenda
Item 5.4 Updating of the worldwide ash encounter database (including the model VAR)
ICAO Doc IAVWOPSG/5-IP/10 15/1/10 (15-19 March 2010).
83
Marianne Guffanti, T J Casadevall, and Karin Budding, Encounters of Aircraft with
Volcanic-Ash Clouds: An Overview, Department of Geological and Mining Engineering
and Sciences, Michigan Technological University
<http://www.geo.mtu.edu/~gbluth/Teaching/GE4150/lecture_pdfs/
L7a_aircraft_hazards.pdf>.
84
Ibid.
85
ICAO, Above n 36, I-5-1.
80
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Volcanic ashes may also cover the airport which accordingly deemed to
be inoperable as seen during the eruption of Mt. Pinatubo.86
In conclusion, in spite of the slight disagreement on the actual
composition and length contact time, there is a significant prove on the
considerable negative effect of volcanic ash clouds towards aviation
safety. Consequently, international community had taken necessary
respond and established various contingency plans to mitigate the
incidents and to ensure the safety of the aircraft. The responds had come
from multiple sectors, started from an orchestrated multilateral effort
under the auspices of the International Civil Aviation Organization (ICAO)
to the regional and domestic level.
III.
THE VOLCANIC ASH CLOUD CONTINGENCY PLAN
Pursuant to the provision of the Chicago Convention on the authority of
the ICAO to established an international standard on the safety of air
navigation,87 the ICAO had prepare several instruments such as the
Procedures of Air Navigation Services (PANS),88 which later expanded by
the ICAO Air Navigation Commission by prepared an ‗interim
guidelines,‘ and adopted by the ICAO council in March 1987, as an
86
Ibid, 1-5-2.
Convention on International Civil Aviation, opened for signature 7 December 1944, 15
UNTS 295 (entered into force 4 April 1947), art. 28.
88
Procedures for Air Navigation Services Rules of the Air and Air Traffic Services,
International Civil Aviation Organization (ICAO) Doc 4444-RAC/501.
87
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amendment to PANS.89 The ICAO also established the Manual for
Aeronautical Meteorology Practice which focused on the meteorology
aspects of the aviation.90 The PANS amendment, lead to the development
of the ICAO International Airways Volcano Watch (IAVW)91 which
established pursuant to the provisions of Annex 3-Meteorological Service
for International Air Navigation92 and Annex 11-Air Traffic Service and
Annex 15-Aeronautic Information Services of the Chicago Convention.93
The ICAO IAVW is mandated to coordinate the monitoring and
subsequent dissemination of the information for the existence of volcanic
ash clouds in atmosphere using information provided by various sources
included the member states as well as other international organization.94
89
ICAO, Above n 36, iii-iv.
ICAO Doc 8896.
91
ICAO, Above n 36, iii-iv.
92
Raúl Romero, International Airways Volcanoes Watch, International Civil Aviation
Organization
<http://www.paris.icao.int/Met/Volc_Ash/VA_awareness_workshop/International%20Air
ways%20Volcano%20Watch%20%28IAVW%29%20-%20ICAO.pdf>.
93
Karsten Theil, Above n 45, 13.
94
Raúl Romero, Above n 81.
90
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Figure 4 the flow of information in ICAO IAVW
95
The ICAO IAVW, had further designated nine regional Volcanic Ash
Advisory Centre (VAAC) which pursuant to Annex 3, 3.5.1 of the Chicago
Convention and in accordance to the regional air navigation agreement,
would be conducting around the clock watch over the volcanic activities
and its effect to the aviation world within its own designated regional
area.96 The information gathered by VAAC would then be disseminated
to all related stakeholders in this issues, included meteorological watch
offices, others VAAC as well as airline companies.97
95
International Airways Volcano Watch (IAVW) of ICAO, International Civil Aviation
Organization <http://www.paris.icao.int/news/20100415_IAVW_ICAO.htm>.
96
Ibid.
97
Raúl Romero, Above n 81.
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Figure 5 regional VAAC
98
Furthermore, to support the ICAO council functions in coordinating
the flow of information within the ICAO IAVW, in developing the IAVW
as well as in advising the ICAO with regards to the future of the IAVW,
the ICAO established the ICAO IAVW Operation Group in 2002.99 It
composed representatives from the nine and related international
organization such as the International Air Transport Association,
International Federation of Air Line Pilots‘ Associations, the International
98
99
Ibid.
Ibid.
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Union of Geodesy and Geophysics, and the World Meteorological
Organization.100
The ICAO IAVW arguably has two main functions. First, it monitored
volcanic activities around the world using data from various sources,
including volcanic observatories as well as real-time aircraft report.101
This function arguably serves as a pre-emptive function since it was
activated before any actual volcanic eruption occurred. The second
function is to disseminate warnings for any volcanic threat to the aviation
safety.102 It also provide specific information with regard to the detail of
the volcanic threat, inter alia the coverage area of the volcanic ash cloud,
the altitude, the direction of its movement, as well as the composition of
the ash cloud.103 This function arguably aimed to mitigate the volcanic
incidents to prevent significant damages towards aviation safety.
Additionally, another pertinent role of the ICAO IAVW is to provide
check-list of procedures for various stakeholders, including the area
control centre, international NOTAM office, meteorological watch office
and for pilot in command of an aircraft, prior and during a volcanic ash
cloud emergency.104
100
Ibid.
Ibid.
102
Ibid.
103
Ibid.
104
Handbook on the International Airways Volcano Watch (IAVW) Operational
Procedures and Contact List Second Edition-2004 ICAO Doc 9766-AN/968.
101
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The latest development for the ICAO plans occurred following the
eruption of Mt. Eyjafjallajökull in Iceland on April – May 2010 when the
ICAO established the International Volcanic Ash Task Force (IVATF) as
an interim group specifically aimed to evaluate the performance of
various contingency plans in mitigating the Eyjafjallajökull eruption as
well as to analyse the necessary revision and development to the plans.105
In addition to the aforementioned ICAO multilateral framework,
several ICAO Regions, such as the European (EUR) and North Atlantic
(NAT) as well as Caribbean (CAR) Regions, had also developed its own
contingency plan which arguably has a more technical feature compared
to the ICAO multilateral standard.106 The ICAO EUR and NAT
contingency plan distinguished the respond into three different phases,
‗alerting phase‘ which focussed on the ‗initial responds‘ in the event of an
imminent volcanic emergency, ‗reactive phase‘ when the volcanic
emergency started, and ‗proactive phase‘ which commenced after the
issuance of ‗the first Volcanic Ash Advisory and Volcanic Ash Graphic.‘107
105
Composition and Terms of Reference of the International Volcanic Ash Task Force,
ICAO
<http://www.icao.int/safety/meteorology/ivatf/Documents/TERMS%20OF%20REFERE
NCE.pdf>.
106
International Volcanic Ash Task Force First Meeting Agenda Item 4.1 ICAO Doc
IVATF/1-DP/4 (29/7/10), [1.1.1].
107
International Civil Aviation Organization Volcanic Ash Contingency Plan EUR and
NAT Regions EUR Doc 019 NAT Doc 006, Part II (December 2010), 2-3.
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The CAR contingency plan also has three different phases.108 Slightly
different, CAR contingency plan is divided into ‗strategic phase, pretactical, and tactical phase‘ albeit the similarity of the provisions of both
plans.109
Other regional organizations such as the European Aviation Safety
Agency had also take a more coordinative role and emphasises on the
support for the dissemination of the information, as pre-emptive measure,
and warning, as mitigating measure, of any volcanic emergency.110 They
would then rely on the individual member countries to implement the
necessary mitigating action towards the volcanic ash cloud emergency as
also mandated by the ICAO contingency plans.111
Thus, notwithstanding to the aforementioned multilateral as well as
regional contingency plans, it is fair to suggest that the contingency plans
of a particular countries are, actually, acted as the spearhead for the
orchestrated contingency plan to address the danger of volcanic ash cloud
towards aviation safety since the multilateral and regional plans need to
108
Regional Caribbean Contingency Procedures for Volcanic Ash, International Civil
Aviation Organization North American, Central American, and Caribbean Regional
Office
<http://www.mexico.icao.int/ATM/APX%20Volcanic%20Ash%20Contingency%20Proc
edures%2004%2030%202008.pdf>.
109
Ibid.
110
Flight in Airspace with contamination of Volcanic Ash, EASA Safety Information
Bulletin SIB No.: 2010-17R4 (24 May 2011).
111
Alberto Alemanno, „The European Regulatory Response to the Volcanic Ash Crisis
between Fragmentation and Integration‟ (2010) 2 European Journal of Risk Regulation
110, 104.
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be adapted by the national contingency plans. These situations may
arguably be resulted from the current practice in international air law
which focused on the jurisdiction of a particular country.
Countries further categorized into those who had control over a
particular Flight Information Region (FIR) area and those countries which
become
the
‗operator/state
of
registry‘
of
airline
companies.112
Accordingly, the responsibilities of those countries are also distinct. The
registry countries have to adopt and implement mitigating procedures to
enabled airline companies to make risk assessment over the danger of
volcanic ash cloud. The FIR countries have a greater responsibility since
they need to contribute the information and monitoring data to the wider
monitoring system as well as developing comprehensive pre-emptive
procedures. Furthermore, the ultimate power in responding to the danger
of the volcanic ash cloud is also arguably retained by the civil aviation
authority of a particular country as seen during the Eyjafjallajökull
eruption where the UK civil aviation authority suspend all air traffic in
UK air-space.113 The steps taken by the civil aviation authority of a
particular country to mitigate the emergency would undeniably implicate
legal consequences to all related stakeholder. One of the examples as seen
112
Karsten Theil, Above n 45, 17.
Peter Sammonds, Bill McGuire and Stephen Edwards (eds), Volcanic Hazard From
Iceland Analysis and Implications of the Eyjafjallajökull Eruption (UCL Institute for Risk
and Disaster Reduction), 8.
113
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in the closure of the airspace during Eyjafjallajökull eruption resulted to
serious havoc in aviation industry leaving millions of passengers
stranded.114
IV.
THE LEGAL IMPLICATIONS OF THE VOLCANIC ASH
CLOUD CONTINGENCY PLAN
Taking the Eyjafjallajökull eruption as an example, in general, there
are several legal liabilities which may be able to be asserted,115
notwithstanding to the general understanding that natural disaster
supposedly construed as a waiver in most legal issues.116 The first
focussed on the decision of the regulator to shut-down the airspace
pursuant to the contingency plans.117 This liability arose from claimed
made by several airlines that the decision of the aviation regulator was
excessive and without prior consultation with all related stakeholders,
includes the airline industry, and accordingly had caused significant
losses to the industry since the airlines were obliged to provide necessary
arrangements to the effected passengers, pursuant to Regulation (EC)
261/2004 of the European Parliament and of the Council on of 11 February 2004
114
Ibid.
Ruwantissa Abeyratne, „Responsibility and Liability Aspects of the Icelandic Volcanic
Eruption‟ (2010) 35 (4/5) Air and Space Law 281, 285-291.
116
John Richards, The Legal Consequences of the Iceland Volcano (11 May 2010) Law
Blog <http://lawblog.legalmatch.com/2010/05/11/legal-consequences-of-the-icelandvolcano/>.
117
Ruwantissa Abeyratne, Above n 104, 285.
115
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establishing common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91,118 regardless to the loss of revenue inflicted to
them.119
This
liability
claim
may
arguably
originate
from
the
disagreements on the actual the measurement and composition as well as
the actual contact time for the volcanic materials might be deemed to be
hazardous towards aviation safety.120
However, the regulator had very strong argument to support its
stance. The Chicago Convention had provide the regulator with
obligations to facilitate air navigation services to ensure the safety of
aviation as stipulated in article 28 and Annex 3 of the Chicago
Convention121 which had become the bases for the development of the
contingency plans. Furthermore, since the decision to suspend all flight
by the regulator supposedly construed as the ‗discretion‘ of the regulator
which implemented the ‗statutory duty of care,‘ thus, as shown in various
case laws discussed by Ruwantissa Abeyratne, the claimant need to prove
118
Regulation (EC) 261/2004 of the European Parliament and of the Council on of 11
February 2004 establishing common rules on compensation and assistance to passengers
in the event of denied boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91 [2004] OJ L 46/1.
119
Ruwantissa Abeyratne, Above n 104, 285.
120
Karsten Theil, Above n 45.
121
Ruwantissa Abeyratne, Above n 104, 285 citing Chicago Convention 1944, art. 28,
Annex 3.
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the negligence which undermined the capability of the regulator to
undertake such obligations.122
The airlines companies also obviously become liable to its passengers
for delay in the flight in accordance by Article 19 of the 1929 Warsaw
Convention,123 which also become Article 19 of the 1999 Montreal
Convention.124 Furthermore, for airlines which departed from the EU, the
Regulation (EC) 261/2004 should be remain enforced upon them and
made the airlines companies liable for the delay of the flight.125
Nevertheless, the provisions of the Warsaw Convention126 further ruled
that the liability of the airlines may be limited if the airlines, along with its
agents, had conducted all ‗necessary measures‘ to avoid the delay. The
volcano eruption should arguably be included in those exceptions.127
However, in accordance with the aforementioned EU regulations, as
122
Ibid, 288.
Convention for the Unification of Certain Rules Relating to International
Transportation by Air, opened for signature 12 October 1929, 137 LNTS 11 (entered into
force 13 February 1933), art. 19.
124
Convention for the Unification of Certain Rules for International Carriage by Air,
opened for signature 28 May 1999, 2242 UNTS 350 (entered into force 4 November
2003), art. 19.
125
Air travel: volcanic ash cloud - EU passenger rights continue to apply (15 April 2010)
European Union
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/131&format=HTM
L&aged=1&language=EN&guiLanguage=en>.
126
Warsaw Convention 1929, art. 20.
127
Ruwantissa Abeyratne, Above n 104, 290.
123
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shown in the case of Eyjafjallajökull eruption, the airlines operated in
Europe retain their liability.
The third liability arose in relation to the passenger insurance. In an
unprecedented stance, the UK Financial Ombudsman Service had ruled
in-favour for a plaintiff who claims that volcanic ash cloud should be
construed as ‗poor-weather conditions‘ in contradiction to the insurance
companies which determines otherwise.128 Accordingly, the insurance
company should make adequate compensation to the claimant pursuant
to the insurance policy. This ruling potentially become an influential
decision for a significant number of insurance cases in the future which
related to the ash cloud emergency and added to the complexity of the
legal issues surrounding the volcanic ash cloud contingency plans since it
would potentially add to the financial obligation which need to be paid
by one of the stakeholder, the insurance company, during that kind of
situation.
The aforementioned three potential liabilities arguably described an
imbalance of legal implication which arises from the volcanic ash cloud
contingency plans. The current system had excessively protected the
passengers, as it should be, and the regulators whilst in the same time
have inflicted significant obligations to the airlines and the insurance
128
Financial Ombudsman Service, Final Decision Ms. B (March 2010)
<http://www.financial-ombudsman.org.uk/publications/technical_notes/travel-insuranceash-mar11.pdf>.
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companies whereas supposedly, the system creates a balance between
those interests.
Thus, a more comprehensive framework may be needed to
accommodate this need for a novel and balanced legal regime as well as
to addressed legal loop-hole currently exist such as the absent of clear
liability on the failure to disseminate proper information with regard to
the volcanic ash cloud emergency by the relevant authority. The
momentum of the comprehensive review of the ICAO volcanic ash cloud
contingency plans undertakes by the IVATF subsequent to the Icelandic
eruption should be utilized to overhaul the existing systems and create a
more balanced system to all stakeholders. The liability system in this
regards should arguably take more into account the decision making
process by the regulator in responding to the volcanic ash cloud
emergency since that decision would serve as the bases for further action
by all stakeholders in responding for such emergency.
The passenger as the consumer, arguably, should always have the
greatest protection from the risk the airline industry might bring,
including for the delay or even cancellation of services due to the
disruption brought by the volcanic ash cloud. Yet, those protections
should not excessively burden the airline industry which also suffered
tremendous losses during the ash cloud emergency.
Thus, the ICAO should strive to establish a liability system where the
regulator, in responding to the volcanic ash cloud emergency, operates
pursuant to a certain set of standard, based on technical as well as
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scientific features on the volcanic ash cloud emergency and its relations to
the safety of civil aviation. The current practice where the regulator may
decide the appropriate respond for the volcanic ash cloud emergency
based on its own discretion should be amended with a system where the
regulator based its respond pursuant to a specific factor, agreed and
decided internationally, and focussed on the technical and scientific
elements and its relation to the civil aviation safety, as well as the losses
incurred by all parties, including the passenger and the airline industry.
With a clear and specific benchmark as bases for the regulator
decision-making-process, all stakeholders would have a common
understanding and knowledge for its respective rights and obligations.
The negligence-of-the-regulator factor that previously essentially need to
be proven would no longer construed as the sole basis to questioned the
regulator decision in responding the volcanic ash cloud emergency.
Instead, the regulator would need to abide with the standard and
benchmark in deciding the appropriate respond, including to directly
assisting the airline during the volcanic ash cloud emergency condition.
That would subsequently enable the other stakeholders to easily observe
the adherence of the regulator to the pre-established international
standard in its decision-making-process for its respond towards the ash
cloud emergency condition. In the event that the regulator failed to
implement the standard, the regulator should also become liable for its
failure. This framework would arguably create a more balanced liability
system where the airline would not bear the sole liability in this regard,
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yet the regulator should also accounted for its respond during the
emergency situation.
V.
CONCLUSION
In responding to the obvious hazardous effects of volcanic ash clouds
towards aviation safety, the international community had established
various contingency plans, started from multilateral level, under the
auspices of the ICAO, regional level and in domestic level. The ICAO
contingency plans are aimed to coordinate international efforts in
monitoring as well as disseminating information on volcanic emergency.
A similar function also existed for regional plans, in a more technical
aspect and a narrower area. However in practice, all of those plans,
arguably, still rely on the implementation on the domestic level of each
particular country which would, generally, adapt the existing ICAO
contingency plans and, if any, a regional contingency plans.
Focussing on the legal implication of those plans, there was
suggestion which argues that the current legal frameworks may not
provide a balance legal implication for all stakeholders related to this
issue. Those opinions underline the excessive protection for passengers
whilst in the same time inflicted significant liabilities to the airlines. In the
end,
international
community
should
address
this
issue
with
comprehensively amending the current legal frameworks to create a more
balance rights and obligations to all stakeholders, including for a greater
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involvement of the domestic authority to support airlines during volcanic
emergency.
BIBLIOGRAPHY
A. Articles/Books/Reports
Abeyratne, Ruwantissa, „Responsibility and Liability Aspects of the Icelandic Volcanic
Eruption‟ (2010) 35 (4/5) Air and Space Law 281
Accident
Description,
Aviation
Safety
Network
<http://aviationsafety.net/database/record.php?id=19820624-0>
Accident
Description,
Aviation
Safety
Network
<http://aviationsafety.net/database/record.php?id=19891215-1>
Active Volcanoes and Plate Tectonics, "Hot Spots" and the "Ring of Fire" (1 February
2003)
United
States
Geological
Survey
<http://vulcan.wr.usgs.gov/Glossary/PlateTectonics/Maps/
map_plate_tectonics_world.html>
Airbus Flight Operations Briefing Notes Operating Environment Volcanic Ash
Awareness‟
(September
2006)
Airbus
<http://www.airbus.com/fileadmin/media_gallery/files/safety_library_items/AirbusS
afetyLib_-FLT_OPS-OPS_ENV-SEQ06.pdf>
Air travel: volcanic ash cloud - EU passenger rights continue to apply (15 April 2010)
European
Union
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/131&format=
HTML&aged=1&language=EN&guiLanguage=en>
Alemanno, Alberto, „The European Regulatory Response to the Volcanic Ash Crisis
between Fragmentation and Integration‟ (2010) 2 European Journal of Risk
Regulation 110
Brennan, Zoe, The Story of BA flight 009 and the Words Every Passenger Dreads ... (29
January 2007) Daily Mail <http://www.dailymail.co.uk/news/article-431802/Thestory-BA-flight-009-words-passenger-dreads-.html#ixzz1qJml4WIj>
Campbell, Larry, A look back at Alaska volcano‟s near-downing of a 747 (18 April 2010)
Herald Net <http://www.heraldnet.com/article/20100418/NEWS02/704189878>
Casadevall, Thomas J, „Volcanic Hazards and Aviation Safety: Lesson from Past Decade‟
[1993] (May) Flight Safety Digest 1
Composition and Terms of Reference of the International Volcanic Ash Task Force,
ICAO
<http://www.icao.int/safety/meteorology/ivatf/Documents/TERMS%20OF%20REFE
RENCE.pdf>
Flight in Airspace with contamination of Volcanic Ash, EASA Safety Information
Bulletin SIB No.: 2010-17R4 (24 May 2011)
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Geffen, Jos van, et al, „An Alert System for Volcanic SO2 Emissions Using Satellite
Measurements‟ (Paper presented at 2009 EUMETSAT Meteorological Satellite
Conference, Bath, England, 21 – 25 September 2009)
Guffanti, Marianne, T J Casadevall, and Karin Budding, Encounters of Aircraft with
Volcanic Ash Clouds; A Compilation of Known Incidents, 1953–2009 (2010) U.S.
Geological Survey Data Series 545 <http://pubs.usgs.gov/ds/545>
Guffanti, Marianne, T J Casadevall, and Karin Budding, Encounters of Aircraft with
Volcanic-Ash Clouds: An Overview, Department of Geological and Mining
Engineering
and
Sciences,
Michigan
Technological
University
<http://www.geo.mtu.edu/~gbluth/Teaching/GE4150/lecture_pdfs/
L7a_aircraft_hazards.pdf>
Handbook on the International Airways Volcano Watch (IAVW) Operational Procedures
and Contact List Second Edition-2004 ICAO Doc 9766-AN/968
International Airways Volcano Watch (IAVW) of ICAO, International Civil Aviation
Organization <http://www.paris.icao.int/news/20100415_IAVW_ICAO.htm>
International Civil Aviation Organization (ICAO), Manual on Volcanic Ash, Radioactive
Material and Toxic Chemical Clouds 2nd ed, (2007) International Civil Aviation
Organization Doc 9691–AN/954 <http://www.paris.icao.int/news/pdf/9691.pdf>
International Civil Aviation Organization Volcanic Ash Contingency Plan EUR and NAT
Regions EUR Doc 019 NAT Doc 006, Part II (December 2010)
International Volcanic Ash Task Force First Meeting Agenda Item 4.1 ICAO Doc
IVATF/1-DP/4 (29/7/10)
Overview of Database on Encounters of Aircraft with Volcanic Ash-Clouds. Fifth
Meeting of the ICAO International Airways Volcano Watch Operations Group
Agenda Item 5.4 Updating of the worldwide ash encounter database (including the
model VAR) ICAO Doc IAVWOPSG/5-IP/10 15/1/10 (15-19 March 2010)
Procedures for Air Navigation Services Rules of the Air and Air Traffic Services,
International Civil Aviation Organization (ICAO) Doc 4444-RAC/501
Regional Caribbean Contingency Procedures for Volcanic Ash, International Civil
Aviation Organization North American, Central American, and Caribbean Regional
Office
<http://www.mexico.icao.int/ATM/APX%20Volcanic%20Ash%20Contingency%20
Procedures%2004%2030%202008.pdf>
Richards, John, The Legal Consequences of the Iceland Volcano (11 May 2010) Law
Blog
<
http://lawblog.legalmatch.com/2010/05/11/legal-consequences-of-theiceland-volcano/>.
Romero, Raúl, International Airways Volcanoes Watch, International Civil Aviation
Organization
<
http://www.paris.icao.int/Met/Volc_Ash/VA_awareness_workshop/International%20
Airways%20Volcano%20Watch%20%28IAVW%29%20-%20ICAO.pdf>
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Sammonds, Peter, Bill McGuire and Stephen Edwards (eds), Volcanic Hazard From
Iceland Analysis and Implications of the Eyjafjallajökull Eruption (UCL Institute for
Risk and Disaster Reduction)
Theil, Karsten, „What are the safety regulations regarding volcanic ash and why?‟ (Paper
presented at Atlantic Conference on Eyjafjallajökull and Aviation, Keflavik, Iceland,
15 and 16 September 2010)
Tilling, Robert I, Volcanoes (12 December 1999) United States Geological Survey
<http://pubs.usgs.gov/gip/volc/text.html>
Volcano Environments (5 February 1997) United States Geological Survey
<http://pubs.usgs.gov/gip/volc/environments.html>
Volcanoes
(2
December
2009)
European
Space
Agency
<http://www.esa.int/SPECIALS/Space_for_our_climate/SEM3XU2VQUD_0.html>
Watson, John, Types of Volcanic Eruptions (5 February 1997) United States Geological
Survey <http://pubs.usgs.gov/gip/volc/eruptions.html>
When Volcanic Ash Stopped a Jumbo at 37,000ft (15 April 2010) BBC News Magazine
< http://news.bbc.co.uk/2/hi/uk_news/magazine/8622099.stm>
Witkin, Richard, Jet Lands Safely After Engines Stop in Flight Through Volcanic Ash
(16
December
1989)
The
New
York
Times
<
http://www.nytimes.com/1989/12/16/us/jet-lands-safely-after-engines-stop-in-flightthrough-volcanic-ash.html>
B. Cases
Financial Ombudsman Service, Final Decision Ms. B (March 2010)
<http://www.financial-ombudsman.org.uk/publications/technical_notes/travelinsurance-ash-mar11.pdf>
C. Legislations/Treaties
Convention on International Civil Aviation, opened for signature 7 December 1944, 15
UNTS 295 (entered into force 4 April 1947)
Convention for the Unification of Certain Rules Relating to International Transportation
by Air, opened for signature 12 October 1929, 137 LNTS 11 (entered into force 13
February 1933).
Convention for the Unification of Certain Rules for International Carriage by Air, opened
for signature 28 May 1999, 2242 UNTS 350 (entered into force 4 November 2003)
Regulation (EC) 261/2004 of the European Parliament and of the Council on of 11
February 2004 establishing common rules on compensation and assistance to
passengers in the event of denied boarding and of cancellation or long delay of
flights, and repealing Regulation (EEC) No 295/91 [2004] OJ L 46/1.
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GLOBAL GOVERNANCE IN A GLOBALIZING
WORLD: DO GLOBALIZATION AND GLOBAL
GOVERNANCE ERODE NATIONAL SOVEREIGNTY?
Frassminggi Kamasa
Abstrak
Tulisan ini membahas mengenai hubungan antara globalisasi dan
pemerintahan global dan efeknya terhadap kedaulatan bangsa dan
negara. Secara khusus, tulisan ini akan mengkaji secara empiris proses
globalisasi dan pemerintahan global yang telah mengakibatkan erosi
terhadap kedaulatan negara yang bersumber dari ide Westphalia.
Berbeda dengan kajian-kajan yang lain, tulisan ini mempertimbangkan
apakah pemerintahan nasional yang lemah, berbagai tekanan dalam
proses globalisasi, dan kompleksitas pemerintahan global dapat
menjelaskan fenomena kedaulatan bangsa dan negara yang mulai
terkikis. Perkembangan yang demikian akan mengurangi kapasitas
negara dan konsolidasi nasional dalam mengatur urusan dalam dan
luar negeri. Sebagai tambahan, akan dianalisa apakah proses dan
interaksi globalisasi dan pemerintahan global bersifat otonom atau
justru merupakan ekspresi dari hegemoni Barat. Dengan menggunakan
analisis studi kasus tunggal mengenai globalisasi dan pemerintahan
global yang terjadi di Indonesia dari tahun 1997—2007, ditemukan
asosiasi antara globalisasi, pemerintahan global, dan kompleksitas
pemerintahan global. Selanjutnya juga akan dibuktikan bahwa
interaksi antara berbagai tekanan dalam proses globalisasi dan
kompleksitas pemerintahan global menghambat kepentingan
pemerintah untuk mengembangkan ketahanan nasional dan
pembangunan bangsa dan negara.
Kata kunci: kedaulatan bangsa dan negara, globalisasi, pemerintahan
global, pembangunan.
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Vol. 14  September-Desember 2013
Abstract
This paper discusses the relationship between globalization and global
governance and its effect on the nation’s sovereignty. Particularly, this paper
will empirically examine the process of globalization and global governance that
has resulted in the erosion of national sovereignty that comes from the idea of
Westphalia. In contrast to other studies, this paper considers whether the
national governments are weak, the pressures of globalization processes, and
the complexity of global governance may explain the dawn of the erosion of the
sovereignty of the nation and the state. Such developments will reduce the
capacity of the state and national consolidation in regulating domestic and
foreign affairs. In addition, it will be analyzed whether the process and the
interaction of globalization and global governance are autonomous or even an
expression of Western hegemony. By using a single case study analysis on
globalization and global governance that occurred in Indonesia from 19972007, we found relationship between globalization, global governance, and the
complexity of global governance. Furthermore it will be proved that the
interaction between the various pressures in the process of globalization and
global governance complexity hamper the interests of the government to develop
a national security and nation building .
Keywords: state sovereignty, globalization, global governance, development.
Introduction
This study investigates Indonesia from 1997-2007. In this study I will
discuss the question about whether globalization and global governance
erodes Indonesia‘s national sovereignty. I will divide this essay into three
sections. The first section analyzes the cause-and-effect relationships
between a weak national government, globalization, and global
governance that erode national sovereignty. The second section
investigates how globalization pressure is likely to have the effect of
eroding national sovereignty. The third section examines how the global
governance complex explains the erosion of national sovereignty.
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My research question is: ―Does globalization and global governance
erode national sovereignty?‖ The study‘s hypotheses may include the
following: (1) state being weakened by the process of globalization and
global governance. A weak national government will lead to an erosionin
national sovereignty. (2) globalization and global governance is less an
autonomous process, and more of an expression of United States
hegemony, this coupled with an economic downturn will lead to erode
national sovereignty.
My first hypothesis, as pointed out by Freiden (2006:471) and Griffiths
(2008:132), is that globalization and global governance weaken national
government and state capacity. In the complex multidimensional
processes of globalization and global governance, the state‘s capacity for
independent political action is weakened. My second hypothesis as
outlined by Gilpin (1987:45) and critical theorists, is that regimes, values,
and agenda setting in globalization and global governance are skewed.
Partisan processes of globalization and global governance have significant
effects on the erosion of state sovereignty.
The debates in International Relations (IR) about global governance
are extensive and voluminous. One of the debates on global governance is
focused
129
on
―whether
national
sovereignty
is
being
eroded.‖129
Quoted in Farrington, J. (2002, October). Sovereignty and Global Governance.
Retrieved July 27, 2012, from Department for International Development:
http://www.odi.org.uk/resources/docs/3171.pdf.
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Sovereignty is defined as supreme authority over a given territory
withthe authority to make laws and regulations for that society.130
Globalizationis―a trend of increasing transnational flows and increasingly
thick networks of interdependence.‖131 The Functional paradigm views
global governance as universal liberal democracy.132 According to
Pattberg, ―in simple terms, global governance means to steer the process
of globalization.‖133
Many scholars pointed out that global governance in the form of thick
globalism and liberal international economic institutions represented only
the interests of industrial countries and northern corporations, which
ruled in a way that was autocratic, deceptive, exploitative, hypocritical,
and imperialistic.134 Thus, from the ideological point of view, the project
130
Krasner, S. (2001). Rethinking the sovereign state model. Review of International
Studies (27, 17-42), pp. 19-29
131
Quoted in Keohane, R. (2002).Power and Governance in a Partially Globalized World.
London: Routledge, p. 15.
132
Ardalan, K. (2011). Globalization and Democracy: Four Paradigmatic Views.
Transcience Journal , Vol. 2, No 1 (2011), 30-31. Available at http://www2.huberlin.de/transcience/Vol2_Issue1_2011_26_53.pdf.
133
Quoted in Patberg, P. (2006). Global Governance: Reconstructing a Contested Social
Science
Concept.
Garnett
Working
Paper,
13.
Available
at
http://www2.warwick.ac.uk/fac/soc/garnet/workingpapers/0406.pdf.
134
Balaam, D., & Veseth, M. (1996). Introduction to International Political Economy.
New Jersey: Prentice Hall, pp. 221-223; Barry Buzan&Ole Wæver. (2003). Regions and
Powers: The Structure of International Security. Cambridge: Cambridge University
Press, p. 10; Eayrs, J. (1992). The Outlook of Statehood. In H. Levine, World Politics
Debate: a Reader in Contemporary Issues (pp. 16-23). New York: McGraw-Hill, Inc;
Frieden, J. (2006). Global Capitalism: Its Fall and Rise in the Twentieth Century. New
York: W.W. Norton & Company, p. 469; Perkins, J. (2009); Hoodwinked. An Economic
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of liberalism is, among other things, about building a sense of uniformity
and the incorporation of all mankind into a single idea free from
restrictions of political boundaries.135 The sovereign state‘s capacity for
independent political action is weakened by globalization, especially in
the area of economic policy.136― National governments had ceded power
to the WTO and the IMF or had this power seized from them by
international markets.‖137 According to critical theorists, such as Cox,
Rosenberg, and Cutler, the emergence of the modern states system is
actually the development of a new form of imperial power, and
hegemony, in which the growing influence of private actors has blurred
the boundaries between private and public authority in the global
realm.138 In each of these analyses, it is clear that there is some erosion of
Hit Man Reveals Why the World Financial Markets Imploded and What We Need to Do
to Remake Them. New York: Broadway Books, pp. 101, 134; Rais, A. (2008). Agenda
Mendesak Bangsa. Selamatkan Indonesia! (Urgent Agenda of the Nation: Save
Indonesia!).
135
Gilpin, R. (1987). The Political Economy of International Relations. New Jersey:
Princeton University Press, pp. 45-46; Perkins, J. (2004). Confessions of an Economic Hit
Man. California: Berret-Koehler Publishers, Inc; pp. 8-10, 15-17, 120-129; Rais, A.
(2008). Agenda Mendesak Bangsa. Selamatkan Indonesia! (Urgent Agenda of the Nation:
Save Indonesia!). Yogyakarta: PPSK Press, pp. 11-18; Thirkell-White, B., Grugel, J., &
Riggirozzi, P. (2008). Beyond the Washington Consensus? Asia and Latin America in
search of more autonomous development. International Affairs (84:3) , pp. 501-504.
136
Griffiths, M., O'Callaghan, T., & Roach, S. (2008). International Relations: The Key
Concepts. New York: Routledge, p. 132.
137
Quoted in Frieden, J. (2006).Global Capitalism: Its Fall and Rise in the Twentieth
Century. New York: W.W. Norton & Company, p. 471.
138
Roach, S. (2007). Critical Theory and International Relations: a Reader. London:
Routledge, pp. 267-283.
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national sovereignty by the processes of globalization and global
governance. It also suggests that the process is less autonomous.
A case study of Indonesia
a. Weak national government
The Republic of Indonesia is the world‘s largest archipelago with
13,487 islands and anarea of 5,193,250 km². It is a ―fragile‖ country with a
population of 240 million people occupying 400 ethnicities and speaking
583 local languages. Indonesian society is united in one principle, which is
Pancasila (five principles), and has a national motto Bhineka Tunggal Ika
(unity in diversity). Indonesia also has the world‘s largest Muslim
population. Given this background, there is no wonder that governance is
a delicate action for the national government. With increasing global
political
interdependence
and
integration,
Indonesian
national
sovereigntymay have become vulnerable and weakened by less
autonomous processes of globalization and global governance.
A weak government can be measured from three principles of poor
governance. Poor governance can be defined simply as the contrary of
good governance.139 In my view, a weak national government is the
139
Nasution,
A.
(2009,
February
13).
http://www.bpk.go.id/web/files/2009/02/corruption2009-vienna-11-13-feb-2009.pdf.
Retrieved
August
15,
2012,
from
BPK:
http://www.bpk.go.id/web/files/2009/02/corruption2009-vienna-11-13-feb-2009.pdf;
Force, P. T. (2002, June). Ensuring Good Governance for Poverty Reduction. Retrieved
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condition of lacking political power, social power and lack of influence of
the leadership or elites in running the state. It is manifest in the lack of
capability or poor management of the governing body to run the system,
take action, control, or regulatethe stateorganization and the people. This
can be seen from the poor governance indicators such as the high level of
national debt, the high level of corruption, and income inequality.
The first principle of poor governance is a high level of national debt.
Debt plus lots of interest leads to disappearing freedom. Since the Cold
War, globalization agencies were using loans as a main instrument of
hegemony by justifying huge international loans that would funnel back
to the hegemony through massive engineering project and bankrupt the
countries that received these loans so they would be forever beholden to
their creditors.140 This system has been called a ―Marshall Plan in reverse‖
where ―payments on Third World debt require more than $375 billion a
year, twenty times the amount of foreign aid that Third World countries
August
27,
2012,
from
World
Bank:
http://siteresources.worldbank.org/INTVIETNAM/Resources/Localizing-MGDs-forPoverty5.pdf, pp. 2;Koh, T. (2009, October 7); Lecture on The Principles of Good
Governance. Retrieved 13 August, 2012, from National University Singapore:
http://www.spp.nus.edu.sg/ips/docs/pub/sp_tk_The%20Principles%20of%20Good%20Go
vernance_071009.pdf; Khemani, M. (2008, March 6). Combating corruption in the
Commonwealth. Retrieved Auguts 20, 2012, from Commonwealth Quarterly:
http://www.thecommonwealth.org/EZInformation/176102/060308combating/.
140
Rais, A. (2008). Agenda Mendesak Bangsa. Selamatkan Indonesia! (Urgent Agenda of
the Nation: Save Indonesia!). Yogyakarta: PPSK Press, pp. 1-2, 23-24; Perkins, J. (2004).
Confessions of an Economic Hit Man. California: Berret-Koehler Publishers, Inc, pp. 15,
203-205.
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receive with the countries of the Global South subsidizing the wealthy
North, even as half the world‘s population lives on less than $2 a day.‖141
Chronic indebtedness in Indonesia from 1997-2007 has seriously
constrained the government‘s ability to advance general prosperity. The
Indonesian reliance for external debt from a cartel of international
creditors, known as the Paris Club, had even started before the onset of
1997 financial crisis. In 1996, Indonesia‘s external debt amounted to
US$127.4 billion or 54.5 per cent of GDP, in 1997 it amounted to US$135.0
billion or 163.1 per cent of GDP, in 1998, it amounted to US$149.9 billion
or 129.0 per cent of GDP, in 1999 amounted to US$ 147.6 billion or 91.0
per cent of her GDP, and in 2000 amounted to US$ 149.1 billion or 86.9 per
cent of her GDP.142 The data presented here are a conservative figure and
therefore it is reasonable to assume that Indonesia is in a state of
bankruptcy in 1996-2000 because of its debt burden reached absolute
levels.
Besides its false recipe to force Bank Indonesia (BI) to close sixteen
banks on November 1997 that created the banking debacle, the IMF also
contributed to a huge Indonesia‘s debt. As we can see from the table
141
Hiatt, S. (2007). A Game As Old As Empire: The Secret World of Economic Hit Men
and the Web of Global Corruption. San Fransisco: Berrett-Koehler Publishers, Inc, p. 19.
142
IMF. (2000, June). Recovery from the Asian Crisis and the Role of the IMF. Retrieved
August
8,
2012,
from
International
Monetary
Fund:
http://www.imf.org/external/np/exr/ib/2000/062300.htm#box3; Febriaty, H. (2010).
Analisis Determinan Cadangan Devisi di Indonesia (Analysis of the Determinants of
Foreign Exchange Resreves in Indonesia). Medan: Universitas Sumatra Utara, pp. 1-7.
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below, it would be reasonable to assume that continued high
indebtedness may have contributed to destabilization in Indonesia from
1997 until it was able to repay enough debt by 2006. Huge debt and social
inequality factors created political turbulence and resulted in the fall of
the government in May 1998 and the disintegration of East Timor.
Indonesia Debts to the IMF 1997-2006
Year
US$ (in billions)
SDR (in billions)
1997
2.92
2.202
1998
5.64
4.254
1999
1.34
1.001
2000-2003
5
3.638
2002
4.5
3.638
2006 (outstanding)
3.2
2.2
Source: http://www.imf.org/external/np/sec/pr/2006/pr06215.htm,
William Cline in International Debts Reexamined argues that the
government that spends over 4 per cent of GDP to pay debts will be
unable to undertake its duty to maintain complete political stability.143
The condition in Indonesia is much worse than 4 per cent. Globalization
143
Cline, W. (1995). International Debt Reexamined. Washington DC: Institute for
International Economics, pp. 1-3, 155.
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seems malign for Indonesia from 1997-2007. The government cannot
escape from a seeming addiction to interest-bearing debt. As a result, the
government is unable to undertake its duty to maintain political stability
because it spends over 100 per cent of GDP to pay its debts to the major
multinational banks, many corporations, and foreign aid missions from a
multitude of countries. The nation becomes bankrupt because of interestbearing debt. This indebtedness, coupled with the Asian financial crisis,
may better explain the cause-and-effect relationship between a weak
national government, globalization and global governance eroding
national sovereignty.
The second principle of poor governance is white-collar crime in the
form of corruption. Transparency International defines corruption as ―the
abuse of entrusted power for private gain. This can mean not only
financial gain but also non-financial advantages.‖144 I think corruption in
Indonesia can be seen from three perspectives. Systemic corruption,
corruption by necessity, and by needs. All these categories are mutually
connected in a globalized world in such a way that if the core system of
today‘s capitalism is driven by unfairness, consumerism, hedonism, and
individualism, the others are also affected.145 With this framework,
144
Compact, U. N. (2011). Global Compact Principle 10. Retrieved August
from
The
UN
Global
http://www.unglobalcompact.org/aboutthegc/thetenprinciples/principle10.html.
145
Katz, C. (2011, January-February). Interpretations of the economic crisis.
August
31,
2012,
from
International
Socialist
31, 2012,
Compact:
Retrieved
Review:
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everything is not enough and there is likely to be a need for more
resources to be exploited. The present capitalist system lacks built-in
systems that respect the harmony between the human and the Supreme
Being, harmony between human beings, and harmony with nature. In this
regard, corruption is a systemic and chronic disorder that exists in today‘s
capitalist system. This can be seen from the inequitable distribution of the
world‘s income that I will present in the next variable.
From micro-analysis, Indonesia also is unable to escape from this
tendency. Corruption has become a chronic problem in Indonesia from
1997-2007. Based on Political and Economic Risk Consultancy (PERC) and
Transparency International survey, from 1997-2006 the level of corruption
in Indonesia has not significantly improved.146 On average, Indonesia
isusually at the top ranking in corruption practices. And because
corruption is a ‗cancer‘ sweeping across Indonesia, the public trust in
politicians is low.
http://www.isreview.org/issues/75/feat-katz.shtml; Perkins, J. (2004). Confessions of an
Economic Hit Man. California: Berret-Koehler Publishers, Inc, p. 206; Perkins, J. (2009).
Hoodwinked. New York: Broadway Books, pp.61-71.
146
Quah, J. (2011). Curbing Corruptions in Asian Countries: An Impossible Dream?
Bingley: Emerald Group Publishing Limited, pp. 388; LAN. (2007).
StrategiPenangananKorupsi di Negara-Negara Asia Pasifik (Strategy of Curbing
Corruption in Asia-Pacific States), Lembaga Administrasi Negara, Pusat
KajianAdministrasiInternasional, 2007, p. 20.
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Indonesia’s Level of Corruption according CPI and PERC
Year
CPI
Rank
and
PERC Rank and Score**
Score*
1997
46th (2.72)
12th (8.67)
1998
80th (2.0)
12th (8.95)
1999
96th (1.7)
12th (9.91)
2000
85th (1.7)
12th (9.88)
2001
88th (1.9)
11th (9.67)
2002
96th (1.9)
12th (9.92)
2003
122nd (2.9)
12th (9.33)
2004
133rd (2.0)
12th (9.25)
2005
137th (2.2)
13th (9.10)
2006
130th (2.4)
13th (8.16)
2007
143rd (2.3)
11th (8.03)
Source: Jon S.T. Quah (2011). Curbing Corruption in Asian Countries: An Impossible
Dream? (Emerald: Bingley) pp. 388. *The Corruption Perception Index by
Transparency International score ranges from 0 (most corrupt) to 10 (least corrupt).
**The Political and Economic Risk Consultancy, Ltd (PERC) score ranges from 0
(least corrupt) to 10 (most corrupt)
From the table above we can infer that corruption in Indonesia from
1997-2007 increased. From 1999-2002, corruption in Indonesia almost
reached the absolute level. This is the period when Indonesian banks
were insolvent because of their imprudent use of fractional reserve
banking without any regulation or enforcement to stop this devastating
practice.
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At this time also, Indonesia came under the auspices of the IMF and
the World Bank to escape from the devastating financial crisis of 1997.147
Without integrity in the system and transparency when using its interestbearing loans, it would be reasonable to assume that the practice of
corruption likely happened by taking advantage of a weak national
government that cannot dodge from dependency and must get interestbearing debts from the creditors.
The third principle of poor governance is income inequality. Income
inequality is the condition where income distribution does not circulate
evenly. There are domestic and international factors that cause income
inequality. For the sake of this study, I argue that ‗the rules of the game‘
of capitalism which include a usurious economic system, money market
system (stocks and bonds), and fiat monetary system has made wealth no
longer circulate in the economy. The consequence is that the rich get
richer and the poor get poorer.
The result is catastrophic. The gap between the ‗haves‘ and ‗have-nots‘
is
a world-wide phenomenon. According to the 2007 Human
Development Report, the poorest 40 per cent of the world‘s population
147
Quah, J. (2011). Curbing Corruptions in Asian Countries: An Impossible Dream?
Bingley: Emerald Group Publishing Limited, pp. 388; Bank, T. W. (2007, July 24);
Hutang Indonesia dan Bantuan Bank Dunia (Indonesian Debts and the World Bank
Assistance).
Retrieved
August
11,
2012,
from
The
World
Bank:
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEX
T/INDONESIAINBAHASAEXTN/0,,contentMDK:21014341~pagePK:1497618~piPK:2
17854~theSitePK:447244,00.html.
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accounts for 5 per centof global income, the richest 20 per cent accounts
for three-quarters of world income.148 From this macro analysis, it is
reasonable to assume that rich people are getting greedy at the expense of
others.
The ‗rules of the game‘ in the name of financial globalization also
manifested itself in numerous economic and financial crises due to
usurious-based economic and financial globalization.149 What is its
relationship with income inequality? As I have mentioned in the previous
analysis, globalization regimes sustain interest-bearing debt and breed
corruption. Corruption affects income inequality.
According to the UN-HABITAT ―empirical research into causal
relationship between corruption and income inequality suggests that it
would take only a 10 per cent decrease in corruption to increase GDP
growth by 1.7 percent in Asian countries.‖150 Income inequality has a
strong impact in weakening the state by magnifying social inequality and
feeding corruption.
148
UNDP. (2007). Human Development Report 2007/2008.New York: Palgrave
Macmillan, p. 25; Perkins, J. (2004); Confessions of an Economic Hit Man. California:
Berret-Koehler Publishers, Inc, pp. xii, 206.
149
The savings and loan crisis in the 1990s, Asian and Russian monetary crisis in 1997,
Enron accounting fraud in 2001, Argentine, Zimbabwe, and Turkey currencies and debt
crises respectively in 2002, 2003, 2004, Bernard Madoff investment scandal in 2005, and
the subprime mortgage crisis in 2007.
150
Programme, U. N. (2008). State of the World's Cities 2010/2011: Bridging the Urban
Divide. New York: Earth Scan, p. 81.
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On a micro-analysis, it creates social inequalities, instability, and the
degradation of national confidence. To be specific, when the economic
and financial crisis hit Indonesia, ordinary people became vulnerable
because they lost their jobs, and even if they retained a job, wages
decreased because of a massive rupiah devaluation. No matter how hard
Indonesian people worked, they were still poor because corruption
prompted by the system had shackled them.
The level of trust and national integration ebbed away. The national
government was helpless in providing basic necessities for the people.
Thisrocked the very foundation of national sovereignty. People became
desperate to find any job; most were informal or dirty, difficult, and
dangerous jobs. With less pay than they were used to, corruption became
short-cut to sustain their life, families, and dependents. The gap between
rich and poor became wider.
82
Year
Gini Ratio in Indonesia
1996
0.356
1997
0.560
1998
0.370
1999
0.311
2002
0.343
2005
0.343
2006
0.357
2007
0.376
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Vol. 14  September-Desember 2013
Source: Collected from various sources and Indonesian National Agency of Statistics
(BPS), Analysis of poverty conditions in Indonesia.151
From the table above, Indonesia‘s Gini index (a measure of the
inequality of income distribution, in which a lower index indicates better
equality) rose to 0.376 in 2007 from 0.356 in 1996. It reached peak value in
1997. From this fact, I can infer that inequality has been increasing in
Indonesia for a decade. The economic growth ‗cake‘ is not distributed
evenly.The concentration of wealth became more exclusive as the gap
between rich and the poor widened. Too much reliance on economic
globalization in the form of debts and foreign capital flows created
vulnerabilities for long-term state economy planning.
The conditions attached to debts was too controlling and did not give
national freedom to do things based on local conditions. This may have
dampened national sovereignty, created political turmoil, and social
151
Statistik, B. P. (2008). Analisis dan Penghitungan Tingkat Kemiskinan Tahun 2008
(Analysis of Poverty Rate in 2008). Jakarta: Badan Pusat Statistik, available at
http://daps.bps.go.id/File%20Pub/Analisis%20Kemiskinan%202008.pdf
pp. 30-35;
ADB. (2012); From Poverty to Prosperity:A Country Poverty Analysis for Indonesia.
Retrieved
August
7,
2012,
from
Asian
Development
Bank:
http://216.109.65.20/Documents/Reports/Poverty-Assessment-INO/default.asp; Maulia,
E. (2008, December 17). Income gap widens in Indonesia, most other countries: ILO.
Retrieved
August
10,
2012,
from
The
Jakarta
Post:
http://www.thejakartapost.com/news/2008/12/17/income-gap-widens-indonesia-mostother-countries-ilo.htm; Sinaga, A. (2012, June 5). Income, a perilously widening gap.
Retrieved
15
August,
2012,
from
The
Jakarta
Post:
http://www.thejakartapost.com/news/2012/06/05/income-a-perilously-widening-gap.html.
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problems. The positive economic growth in Indonesia was yet to trickledown for the welfare and prosperity of the people.152
b. Economic globalization pressure
Globalization pressure is the use of persuasion, influence, intervention
or even intimidation to make states lose their autonomous economic and
political decision making power. Economic and political globalization as a
pressure from the Western world to the non-Western world is explained
by the concept of hegemony. The new liberal cosmopolitan ideal is
emerging and being accepted as the dominant ideology. There is
substantial pressure from globalization agents such as the IMF, World
Bank, and MNCs to follow homogenous, hegemonic, and imperialistic
democratization processes coupled with liberal development strategies.153
With her strategic location and rich natural resources, Indonesia has
attracted states and transnational actors to impose three strands of
152
Wijayanto. (2011, April 28). Income, a perilously widening gap. Retrieved August 8,
2012, from Globe Asia: http://www.thejakartaglobe.com/columnists/the-illusion-ofbeing-equal-prosperous-and-employed/437854.
153
Ardalan, K. (2011). Globalization and Democracy: Four Paradigmatic Views.
Transcience Journal , Vol. 2, No 1 (2011), pp. 30-31; Febriaty, H. (2010).Analisis
Determinan Cadangan Devisi di Indonesia (Analysis of the Determinants of Foreign
Exchange Resreves in Indonesia). Medan: Universitas Sumatra Utara, pp. 1-7; Hobson, J.
(2000). The State and International Relations. Cambridge: Cambridge University Press,
pp. 130-136;Perkins, J. (2004). Confessions of an Economic Hit Man. California: BerretKoehler Publishers, Inc; pp. 8-10, 15-17, 120-129; Perkins, J. (2009). Hoodwinked. An
Economic Hit Man Reveals Why the World Financial Markets Imploded and What We
Need to Do to Remake Them. New York: Broadway Books, p. 141.
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liberalism. Commercial liberalism promotes the idea of free trade and
economic interdependence, republican liberalism endorses the spread of
democracy, and institutional liberalism promotes the development of
international institutions.
For Indonesia, globalization pressure from 1997-2007 can be divided
into three components. First, the component of economic policy resulted
from the imposition of Washington Consensus mantras, which are
privatization, deregulation, and liberalization to escape from the Asian
financial crisis 1997. Second, the spread of an American political model
via globalization agents required Indonesia to undertaken overhaul of
political organization based on liberal values. Third, the war on terror
included pressure to eradicate so-called ―Islamic terrorism‖ in Indonesia
and prevent the country from becoming Southeast Asia‘s terrorism
hotspot. In this analysis, I focus on the first aspect.
Indonesia‘s national sovereignty was at low ebb from 1997-2007. The
government was weak because of its ailing internal affairs and reliance on
globalization regimes. Indonesia was basically bankrupt because of a debt
trap. International interest-bearing loans bound Indonesia to its creditors.
Fundamental economic integration and interest-seeking rules nourish
rent-seeking behavior in today‘s capitalism.
Indonesia‘s decaying sovereignty can be clearly seen from the
conditional aid found in the Letter of Intent (LoI) and Memorandum of
Economic and Financial Policies (MEFP) of the government of Indonesia
from 1998-2006. This basically required the Indonesian government to
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undertake privatization, deregulation, and liberalization of its strategic
state-owned enterprises (SOEs).154
The IMF has given a false recipe to Indonesia, which must follow the
LoI in order to basically liberalize, deregulate, and privatize its economy
and become a model of Washington Consensus policies. The LoI sets out
the conditions for Indonesia to get funds from the IMF.155 Jonathan
Stevenson describes this shocking pressure ―the IMF offered help in the
form of confidential agreement on 31 October 1997. The letter of intent
required that 16 banks be closed in November 1997, which prompted a
run even on relatively healthy banks.‖156 The pressure was getting high
when the IMF threatened to withhold further bailout funds if the
government did not following its instruction. Furthermore, on January 9,
1998, US President Bill Clinton called President Suharto to insist that IMF
program must be followed.157
154
IMF. (2012, July 18). Indonesia and the IMF. Retrieved August 23, 2012, from
International
Monetary
Fund:
http://www.imf.org/external/country/idn/index.htm?type=23.
155
IMF. (2002, November 20). Indonesia—Letter of Intent. Retrieved August 10, 2012,
from
International
Monetary
Fund:
http://www.imf.org/external/np/loi/2002/idn/03/index.htm..
156
Quoted in Stevenson, J. (2000).Preventing Conflict: The Role of the Bretton Woods
Institute. New York: Oxford University Press, p.18.
157
Kutan, A., Sudjana, B., & Moradoglu, G. (2012). IMF Programs, financial and real
sector performance, and the Asian Crisis. Retrieved August 31, 2012, from City
University
of
Hongkong:
http://www.cb.cityu.edu.hk/CONFERENCE/EMRM2012/doc/KUTAN%20Ali.pdf, pp.
25-49.
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On February 4, 2000, the IMF approved a three-year term loan to
support the program of structural reforms in Indonesia. When Indonesia
asked for financial assistance, the IMF provided a variety of conditions.158
Sometimes these requirements actually increased the financial crisis on
borrowing countries, as well as what happened in Indonesia during the
1997 economic crisis. The policy of the Fund is used to force, among other
things, privatization, removal of subsidies and deregulation. After the
1997 crisis, on March 26, 1998, the US$40 billion rescue package organized
by the IMF failed in the goal of reviving Indonesia‘s economy. In fact, it
increased the country‘s debt burden dramatically, while simultaneously
exacerbating Indonesia‘s economic crisis.159
The hegemonic dominance of the economic and political globalization
contracts affected national sovereignty, capacity, and capability to create
independent political-economic decisionsat critical times. These sets of
regimes were retained by the IMF via post-program monitoring.160 With
158
Baswir, R. (2005, December 06). Tim Ekuin 'Boediono'? (Economic Team of
'Boediono')? Retrieved August 12, 2012, from Gadjah Mada University:
http://www.ekonomikerakyatan.ugm.ac.id/My%20Web/sembul34_1.htm; Tri. (2003, July
31). Pasca-IMF, Dikeluarkan Buku Putih (Post-IMF, White Book been Released).
Retrieved
August
30,
2012,
from
Suara
Merdeka:
http://www.suaramerdeka.com/harian/0307/31/nas6.htm.
159
Kamasa, F. (2011). What China's and India's Economic Development Can Bring to
ASEAN? Jurnal Diplomasi, Vol. 3, No. 1, March 2011, p. 112.
160
Regimes defined as implicit or explicit principles, norms, rules, and decision-making
procedures. IMF (2005, March). Indonesia: Post-Program Monitoring Discussions.
Retrieved
August
28,
2012,
from
International
Monetary
Fund:
http://www.imf.org/external/pubs/ft/scr/2005/cr05108.pdf; IMF. (2001, December 13);
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high interdependence, caused by the lack of political will creating a basis
for the large-scale economies, Indonesia could not resist globalization
pressures, could not secure enough freedom to do things, was, and still is,
trapped in a huge debt.
When Indonesia signed the conditions of the loans, its national
sovereignty basically eroded for five reasons. First, the Indonesian
government was required to make an autonomous Banking Law. From
here emerges Act No.23/1999 on Bank Indonesia that separates state
authority from the central bank of the Republic of Indonesia.161 The
puzzle is, if the state is sovereign, why does it have to stipulate a law that
is so important, being imposed by non-state organization (INGOs)?
Furthermore, BI cannot be separated from the effects of having to submit
tothe IMF Articles of Agreement, that is, to be regulated, and in some
instances (as per the following articles: article IV section 2, article IV
section 3.a, article V section 1, and article VIII section 5), this involves the
state losing control of its central bank to the IMF, and only the central
Indonesia—Letter of Intent,Memorandum of Economic and Financial Policies, and
Technical Memorandum of Understanding,. Retrieved August 14, 2012, from
International Monetary Fund: http://www.imf.org/external/np/loi/2001/idn/02/index.htm.
161
Indonesia, R. o. (1999). Act of the Republic of Indonesia No. 23 of 1999 Concerning
Bank Indonesia. Retrieved August 23, 2012, from Bank Indonesia:
http://www.bi.go.id/NR/rdonlyres/E59D56AB-5BA9-4828-A7B20FC008B49A61/1215/act2399.pdf.
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bank, not government, is to have the relationship with the IMF.162 The
bank is the backbone of national economy and if the central bank cannot
escape being ruled by the non-state organization then logically the IMF is
controlling Indonesia and the economic sovereignty of Indonesian is
being eroded.
Second, under the LoI requirements for restructuring the banking
system, the government had to amend the Act of the Republic of
Indonesia concerning Banking by Act No. 10 of 1998 and create
Government Regulation No. 29 of 1999 concerning Purchase of Shares in
Commercial Banks, which allowed total foreign ownership to 99 per cent
of the commercial bank.163 This high threshold was dictated by the IMF in
the conditionsassociated with its loansin an effort to spur growth in the
immediate aftermath of the 1997 monetary crisis.
Third, under the LoI on privatization of the SOEs, the government
should increase the shares of SOEs released to the public. At least, this
should be done for companies engaged in domestic and international
162
IMF. (1944, July 22). Articles of Agreement of the International Monetary Fund.
Retrieved
August
18,
2012,
from
International
Monetary
Fund:
http://www.imf.org/external/pubs/ft/aa/.
163
Heriani, F. N., & Arkyasa, M. (2012, July 23). BI Should Regulate Foreign Ownership
of National Banks. Retrieved August 20, 2012, from Hukum Online.com:
http://en.hukumonline.com/pages/lt500cfb9830e72/bi-should-regulate-foreign-ownershipof-national-banks; Indonesia, R. o. (1998). Act of the Republic of Indonesia Number 7 of
1992 Concerning Banking as Amended by Act Number 10 of 1998. Retrieved August 18,
2012, from Bank Indonesia: http://www.bi.go.id/NR/rdonlyres/E59D56AB-5BA9-4828A7B2-0FC008B49A61/13309/act_1098e.PDF.
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telecommunications sectors.164 Because of this commitment, in less than
five years, the Indonesian government lost the ownership of its
telecommunications company Indosat which is strategically important.
Because of this commitment, SOEs became purely business-oriented,
which is to seek profit and sacrifice the welfare of the people.
The economic and financial globalization that took place towards the
end of the twentieth century is characterized by the liberalization ofall
sectors imposed through structural adjustment programs (SAP) by global
financial institutions. Globalization comes with policy conditions.
According to the IMF, the prime goals of SAP are to improve a
country‘s balance of payments, and to promote sustainable long-term
growth. In reality, it is not transparent and can be seen as a major cause of
poverty in Indonesia.
IMF‘s SAP is intended to assist Indonesia tomeet its debt-bearing
loans provided by the IMF to Indonesia to address fiscal issues, monetary,
inflation, financial deregulation, trade liberalization, and privatization of
public-sector enterprises. The assistance has become counterproductive
164
Online, H. (2000, September 21). Privatisasi Indosat Diundur Sampai 2003 (Indosat
Privatization Postpones untill 2003). Retrieved August 20, 2012, from Hukum
Online.com:
http://www.hukumonline.com/berita/baca/hol674/privatisasi-indosatdiundur-sampai-2003; Ritonga, U. (2002, Juni 18). Kesepakatan Ekonomi sebagai
Pengganti LoI IMF (Economic Agreement as a Substitute of IMF's LoI). Retrieved
August
20,
2012,
from
Tempo
Interaktif:
http://www.tempo.co.id/hg/ekbis/2002/06/18/brk,20020618-14,id.html.
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and was often criticized as the crisis became deeper, longer, and harder.165
We can see this course from table below.
Level of Unemployment, Level of GDP, Level of Trade, Inflation Rate,
and Interest Rate in Indonesia 1997-2007 (in percentage)
Year
Level of
Level
Level of
Inflation
Interest
Unemployment
of GDP
Economic
Rate
Rate
Growth
1997
5.00
4.7
5.00
11.05
8.21
1998
5.46
-13.3
-15.0
77.63
-24.6
1999
6.36
0.3
0.79
2.01
11.83
2000
6.08
4.8
4.90
9.35
-1.65
2001
8.01
3.4
3.64
12.55
3.72
2002
9.06
3.7
4.50
10.03
12.32
2003
9.51
4.8
4.78
5.06
10.85
2004
9.86
5.0
5.03
6.40
6.4
2005
10.26
5.7
5.69
17.11
12.75
2006
10.27
5.5
5.50
6.60
9.75
2007
9.11
6.3
6.35
6.59
8.00
Sources: Data processed from various sources,
http://www.bps.go.id/aboutus.php?inflasi=1, Indonesian National Agency of Statistics
(BPS), 1997-2007, Statistical Yearbook of Indonesia (various years);
http://www.worldbank.org/en/country/indonesia,
http://eprints.undip.ac.id/26483/2/Jurnal_Skripsi.pdf
165
Naqvi, N. (2012, August 26). The IMF and Us. Retrieved September 4, 2012, from The
Express Tribune: http://tribune.com.pk/story/426495/the-imf-and-the-us/.
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What assumptions can be made with the above data? Five salient
observations can be drawn from these economic downturn indicators.
First, by any standards, Indonesia had high unemployment rates from
1997-2007. From 1999-2007, the growth of the economy was relatively low,
at just about 3.9 percent. Second, the high rates of unemployment,
inflation rates, and interest rates contributed to the onset of a weak
national government in Indonesia handling macro and micro economic
indicators. Unemployment grew and the number of poor people
increased sharply. The difference between the highest and the lowest of
the unemployment levels are double and inflation rates twelve-fold.
Third, the double digits of unemployment rates, interest rates, and
inflation rates in Indonesia may have contributed to destabilization in
socio-economic conditions in Indonesia. Such high destabilization affects
societal economy activities. Fourth, in Indonesia from 1997-2007, the
unemployment, inflation rates, and interest rates were relatively stable at
high levels of 10 per cent, 17 per cent, and 20 per cent for a decade. Fifth,
these indicators coupled with other variables may better explain the onset
of weak national government and economic downturn in Indonesia over
a period of ten years. Economic downturn is even harder when we look at
the effects of the economic crisis as a result of the US sub-prime mortgage
crisis in 2008 and the series of bubbles from then until now.
The
economic
globalization
pressure
has
created
unequal
relationships in the international system and allowed foreign countries to
control critical resources and dominate the country‘s public policy
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making. For example, the fiat monetary system will invariably lead to
inflation because paper money is printed continuously so that the value of
its purchasing power decreases. It also invariably benefits highly
industrialized countries because soft currencies (e.g. Indonesian Rupiah)
must be linked to hard currencies (e.g. US Dollar).
The monetary crisis in Indonesia that began in July 1997 led to the fall
of President Suharto on May 21, 1998. Inflation soared, and was recorded
at 11.05 % in 1997 and reached 77.63 per cent in 1998. This financial crisis
led to the collapse of the rupiah from Rp. 2.000 in 1997 to reach Rp. 20.000
per US dollar in 1998. This caused high prices in traded goods of more
than 4 times, that is, of more than 300 per cent, at the 1998 exchange rate,
in addition interest-bearing foreign denominated debt was swollen as the
value of the rupiah depreciated against the US dollar. The sovereignty of
national government is eclipsed when the national currency depreciates
in such way.
Based on this analysis, it is reasonable to say that the IMF‘s bailout of
Indonesia in 1997-1998 is basically a pressure for Indonesia to adhere to
structural conditionality, but this has adversely affected Indonesia‘s
macro and micro-economic conditions. Indonesia at that time desperately
needed loans because of its economic imprudence, fiat monetary system,
and monetary speculation. It is hard to resist the actors and agents of
globalization.
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Global governance complex
According to Anthony McGrew, ―an evolving global governance
complex existsembracing states, international institutions, transnational
networks and agencies (both public and private)that functions, with
variable effect, to promote, regulate, or intervene in the common affairs of
humanity.‖166 The global governance complex is embracing all nationstates today. It is inevitable, inescapable, and irresistible. As we have seen
from the analysis above, globalization is present at an economic, political,
and societal level. In fact globalization and global governance complicate
the ability of the state to maintain its sovereignty. The global governance
complex frames the regimes and values of international relations.
A web of organizations, public and private, domestic and
international shapes political regimes and policy, sets standards, and
enforces rules on a wide range of issues where sates lack effective
authority.167 I have outlined the case of the IMF intervention in Indonesia
from 1997-2007 that may fit into this categorization. The process of global
governance in Indonesia is less autonomous but driven by hegemonic
interests to gain advantage in the name of globalization and undermine
national sovereignty.
166
McGrew, A. (2010). Globalization and global politics. In J. Baylis, & S. Smith,
Globalization of World Politics (p. 25). Oxford: Oxfor University Press.
167
Perkins, J. (2009). Hoodwinked. New York: Broadway Books, pp. 19, 35, 41.
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Indonesia, from 1997-2007 experienced this global governance in a
harsh way. As we have seen above, Indonesia was hit badly from the 1997
Asian financial crisis. The state capacity and autonomy was degraded and
almost lead to Balkanization, with the risk of disintegration and becoming
a failed state. Indonesia has been bound by numerous international
commitments by the globalization and governance regimes. The rule of
law became less well obeyed and the situation became very chaotic. A set
of regimes, values, and ideas was created for, and enforced by, a variety
of globalization actors. In this situation, the grass roots movement
consisting of religious groups and civil society urged for restoration of
Indonesia against the blatantly foreign intervention in shaping
Indonesia‘s economic and political policy.168
In the area of global governance complex, there are in fact three
distinct but interrelated processes at work. First the process of global
governance complex locates who is the authority in global politics.
Transformation of international politics becomes an arena no longer
dominated by the state because the state is seen as incompetent or
without capacity to solve global multidimensional problems. In another
way, the reduction of the state as the central decision making body on
policy is due toa lack of central authority and challenges to state
autonomy, capacity and legitimacy.
168
Gie, K. K. (2006). Kebijakan Ekonomi Politik dan Hilangnya Nalar (Political
Economy Policy and Lost of Reason). Jakarta: Kompas, p. 102.
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Second, where did liberal regime legitimacy come from? An act of
imposition, intervention, or even intimidation is certainly against the
principles of non-interference and respecting sovereignty that Indonesia
or any civilized nations embraced. Learning from Indonesia‘s experience,
the idealism of liberalism can ruin the essence of the liberal idea, which is
freedom to choose, because it imposesthe views of another actor who has
different historical process, cultural identity, and world-view and requires
acceptance ofa singular global governance synthesis.
Lastly, the global governance complex entails considerable risk to
security if it is promoting or regulating its norms and value by
intervention. The way that the legitimacy of the state is not being
recognized gives rise to suspicion in many different ways. First, the global
governance complex may be tending to world government. Second, it is
likely to build a sense of uniformity and incorporation of all mankind into
a single idea and society. Third, as Patomäkiargues, it may transform
people and collective actors to accord with the preferred liberal world
order. Then it might give rise to a definition of higher and lower beings,
the ‗other‘ may be treated as an innocent to be converted. There also
emerges the perceived need for coercive powers to protect the liberal
agenda.169
169
Patomaki, H. (2003). Problems of Democratizing Global Governance: Time, Space,
and the Emancipatory Process. European Journal of International Relations, pp. 7-8.
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Conclusion
In conclusion, globalization and global governance eroded Indonesia‘s
national sovereignty from 1997-2007. During this time Indonesia suffered
many serious blows. A national government suffered the most and
economic and political autonomy were much reduced by the crisis. The
Indonesian experience has shown that globalization and global
governance is less an autonomous process. It is more an expansion of
non-state actor and Western-liberal democratic state hegemony, coupled
with economic crises that attenuate national sovereignty.
Bibliography
ADB. (2012); From Poverty to Prosperity:A Country Poverty Analysis for Indonesia.
Retrieved August 7, 2012, from Asian Development Bank:
http://216.109.65.20/Documents/Reports/Poverty-Assessment-INO/default.asp
Ardalan, K. (2011). Globalization and Democracy: Four Paradigmatic Views.
Transcience Journal , Vol. 2, No 1 (2011), 30-31. Available at http://www2.huberlin.de/transcience/Vol2_Issue1_2011_26_53.pdf.
Balaam, D., & Veseth, M. (1996). Introduction to International Political Economy. New
Jersey: Prentice Hall, pp. 221-223; Eayrs, J. (1992).
Baswir, R. (2005, December 06). Tim Ekuin 'Boediono'? (Economic Team of 'Boediono')?
Retrieved August 12, 2012, from Gadjah Mada University:
http://www.ekonomikerakyatan.ugm.ac.id/My%20Web/sembul34_1.htm.
Buzan, B., & Wæver, O. (2003). Regions and Powers: The Structure of International
Security. Cambridge:
Cambridge University Press.
Cline, W. (1995). International Debt Reexamined. Washington DC: Institute for
International Economics.
Compact, U. N. (2011). Global Compact Principle 10. Retrieved August 31, 2012, from
The UN Global Compact:
http://www.unglobalcompact.org/aboutthegc/thetenprinciples/principle10.html.
Eayrs, J. (1992). The Outlook of Statehood. In H. Levine, World Politics Debate: a
Reader in Contemporary Issues (pp. 16-23). New York: McGraw-Hill, Inc.
97
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
Febriaty, H. (2010). Analisis Determinan Cadangan Devisi di Indonesia (Analysis of the
Determinants of Foreign Exchange Resreves in Indonesia). Medan: Universitas
Sumatra Utara.
Frieden, J. (2006). Global Capitalism: Its Fall and Rise in the Twentieth Century. New
York: W.W. Norton & Company.
Farrington, J. (2002, October). Sovereignty and Global Governance. Retrieved July 27,
2012, from Department for International Development:
http://www.odi.org.uk/resources/docs/3171.pdf.
Force, P. T. (2002, June). Ensuring Good Governance for Poverty Reduction. Retrieved
August 27, 2012, from World Bank:
http://siteresources.worldbank.org/INTVIETNAM/Resources/Localizing-MGDs-forPoverty5.pdf.
Gie, K. K. (2006). Kebijakan Ekonomi Politik dan Hilangnya Nalar (Political Economy
Policy and Lost of Reason). Jakarta: Kompas.
Gilpin, R. (1987). The Political Economy of International Relations. New Jersey:
Princeton University Press.
Griffiths, M., O'Callaghan, T., & Roach, S. (2008). International Relations: The Key
Concepts. New York: Routledge.
Heriani, F. N., & Arkyasa, M. (2012, July 23). BI Should Regulate Foreign Ownership of
National Banks. Retrieved August 20, 2012, from Hukum Online.com:
http://en.hukumonline.com/pages/lt500cfb9830e72/bi-should-regulate-foreignownership-of-national-banks.
Hewson, M., & Sinclair, T. (1999). Approaches to Global Governance Theory. New
York: State University of New York Press, Albany.
Hiatt, S. (2007). A Game As Old As Empire: The Secret World of Economic Hit Men and
the Web of Global Corruption. San Fransisco: Berrett-Koehler Publishers, Inc.
Hobson, J. (2000). The State and International Relations. Cambridge: Cambridge
University Press.
Indonesia, R. o. (1998). Act of the Republic of Indonesia Number 7 of 1992 Concerning
Banking as Amended by Act Number 10 of 1998. Retrieved August 18, 2012, from
Bank Indonesia: http://www.bi.go.id/NR/rdonlyres/E59D56AB-5BA9-4828-A7B20FC008B49A61/13309/act_1098e.PDF.
Indonesia, R. o. (1999). Act of the Republic of Indonesia No. 23 of 1999 Concerning Bank
Indonesia. Retrieved August 23, 2012, from Bank Indonesia:
http://www.bi.go.id/NR/rdonlyres/E59D56AB-5BA9-4828-A7B20FC008B49A61/1215/act2399.pdf.
IMF. (1944, July 22). Articles of Agreement of the International Monetary Fund.
Retrieved August 18, 2012, from International Monetary Fund:
http://www.imf.org/external/pubs/ft/aa/.
IMF. (2000, June). Recovery from the Asian Crisis and the Role of the IMF. Retrieved
August 8, 2012, from International Monetary Fund:
http://www.imf.org/external/np/exr/ib/2000/062300.htm#box3.
98
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
IMF. (2001, December 13); Indonesia—Letter of Intent,Memorandum of Economic and
Financial Policies, and Technical Memorandum of Understanding,. Retrieved
August 14, 2012, from International Monetary Fund:
http://www.imf.org/external/np/loi/2001/idn/02/index.htm.
IMF. (2002, November 20). Indonesia—Letter of Intent. Retrieved August 10, 2012, from
International Monetary Fund:
http://www.imf.org/external/np/loi/2002/idn/03/index.htm.
IMF (2005, March). Indonesia: Post-Program Monitoring Discussions. Retrieved August
28, 2012, from International Monetary Fund:
http://www.imf.org/external/pubs/ft/scr/2005/cr05108.pdf.
IMF. (2012, July 18). Indonesia and the IMF. Retrieved August 23, 2012, from
International Monetary Fund:
http://www.imf.org/external/country/idn/index.htm?type=23.
Kamasa, F. (2011). What China's and India's Economic Development Can Bring to
ASEAN? Jurnal Diplomasi, (Vol. 3, No. 1, March 2011 103-117).
Katz, C. (2011, January-February). Interpretations of the economic crisis. Retrieved
August 31, 2012, from International Socialist Review:
http://www.isreview.org/issues/75/feat-katz.shtml.
Keohane, R. (2002). Power and Governance in a Partially Globalized World. London:
Routledge.
Khemani, M. (2008, March 6). Combating corruption in the Commonwealth. Retrieved
Auguts 20, 2012, from Commonwealth Quarterly:
http://www.thecommonwealth.org/EZInformation/176102/060308combating/.
Koh, T. (2009, October 7); Lecture on The Principles of Good Governance. Retrieved 13
August, 2012, from National University Singapore:
http://www.spp.nus.edu.sg/ips/docs/pub/sp_tk_The%20Principles%20of%20Good%
20Governance_071009.pdf.
Krasner, S. (2001). Rethinking the sovereign state model. Review of International Studies
(27, 17-42).
Kutan, A., Sudjana, B., & Moradoglu, G. (2012). IMF Programs, financial and real
sector performance, and the Asian Crisis. Retrieved August 31, 2012, from City
University of Hongkong:
http://www.cb.cityu.edu.hk/CONFERENCE/EMRM2012/doc/KUTAN%20Ali.pdf,
pp. 25, 29, 40, 24, 38, 49.
LAN.(2007). StrategiPenangananKorupsi di Negara-Negara Asia Pasifik (Strategy of
Curbing Corruption in Asia-Pacific States), Lembaga Adinistrasi Negara, Pusat
KajianAdministrasiInternasional, 2007.
Maulia, E. (2008, December 17). Income gap widens in Indonesia, most other countries:
ILO. Retrieved August 10, 2012, from The Jakarta Post:
http://www.thejakartapost.com/news/2008/12/17/income-gap-widens-indonesiamost-other-countries-ilo.htm
99
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
McGrew, A. (2010). Globalization and global politics. In J. Baylis, & S. Smith,
Globalization of World Politics (pp. 25). Oxford: Oxfor University Press
Nasution, A. (2009, February 13).
http://www.bpk.go.id/web/files/2009/02/corruption2009-vienna-11-13-feb-2009.pdf.
Retrieved August 15, 2012, from BPK:
http://www.bpk.go.id/web/files/2009/02/corruption2009-vienna-11-13-feb-2009.pdf.
Naqvi, N. (2012, August 26). The IMF and Us. Retrieved September 4, 2012, from The
Express Tribune: http://tribune.com.pk/story/426495/the-imf-and-the-us/.
Online, H. (2000, September 21). Privatisasi Indosat Diundur Sampai 2003 (Indosat
Privatization Postpones untill 2003). Retrieved August 20, 2012, from Hukum
Online.com: http://www.hukumonline.com/berita/baca/hol674/privatisasi-indosatdiundur-sampai-2003.
Patberg, P. (2006). Global Governance: Reconstructing a Contested Social Science
Concept. Garnett Working Paper, 13. Available at
http://www2.warwick.ac.uk/fac/soc/garnet/workingpapers/0406.pdf.
Patomaki, H. (2003). Problems of Democratizing Global Governance: Time, Space, and
the Emancipatory Process. European Journal of International Relations.
Perkins, J. (2009); Hoodwinked. An Economic Hit Man Reveals Why the World Financial
Markets Imploded and What We Need to Do to Remake Them. New York: Broadway
Books
Perkins, J. (2004). Confessions of an Economic Hit Man. California: Berret-Koehler
Publishers, Inc.
Programme, U. N. (2008). State of the World's Cities 2010/2011: Bridging the Urban
Divide. New York: Earth Scan.
Quah, J. (2011). Curbing Corruptions in Asian Countries: An Impossible Dream?
Bingley: Emerald Group Publishing Limited.
Rais, A. (2008). Agenda Mendesak Bangsa. Selamatkan Indonesia! (Urgent Agenda of
the Nation: Save Indonesia!). Yogyakarta: PPSK Press.
Ritonga, U. (2002, Juni 18). Kesepakatan Ekonomi sebagai Pengganti LoI IMF
(Economic Agreement as a Substitute of IMF's LoI). Retrieved August 20, 2012,
from Tempo Interaktif: http://www.tempo.co.id/hg/ekbis/2002/06/18/brk,2002061814,id.html.
Roach, S. (2007). Critical Theory and International Relations: a Reader. London:
Routledge.
Sinaga, A. (2012, June 5). Income, a perilously widening gap. Retrieved 15 August, 2012,
from The Jakarta Post: http://www.thejakartapost.com/news/2012/06/05/income-aperilously-widening-gap.html.
Statistik, B. P. (2008). Analisis dan Penghitungan Tingkat Kemiskinan Tahun 2008
(Analysis of Poverty Rate in 2008). Jakarta: Badan Pusat Statistik, available at
http://daps.bps.go.id/File%20Pub/Analisis%20Kemiskinan%202008.pdf.
Stevenson, J. (2000). Preventing Conflict: The Role of the Bretton Woods Institute. New
York: Oxford University Press.
100
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
Thirkell-White, B., Grugel, J., & Riggirozzi, P. (2008). Beyond the Washington
Consensus? Asia and Latin America in search of more autonomous development.
International Affairs (84:3, 501-504).
Tri. (2003, July 31). Pasca-IMF, Dikeluarkan Buku Putih (Post-IMF, White Book been
Released). Retrieved August 30, 2012, from Suara Merdeka:
http://www.suaramerdeka.com/harian/0307/31/nas6.htm.
UNDP. (2007). Human Development Report 2007/2008. New York: Palgrave Macmillan.
Wijayanto. (2011, April 28). Income, a perilously widening gap. Retrieved August 8,
2012, from Globe Asia: http://www.thejakartaglobe.com/columnists/the-illusion-ofbeing-equal-prosperous-and-employed/437854
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TEINVER V. ARGENTINA: THE MOST FAVORED
NATIONS PRINCIPLE IN A MULTIPLE BILATERAL
INVESTMENT TREATIES ERA
Nenda Inasa Fadhilah
Abstrak
Investasi adalah salah satu saluran interaksi ekonomi diantara negaranegara disamping perdagangan di era globalisasi saat ini. Negaranegara bekerja-sama dengan membuat Perjanjian Investasi Bilateral
(BIT) untuk menentukan tingkat perlakuan yang akan mereka berikan
kepada investor dari negara mitra. Investor asing, baik dari negaranegara maju dan berkembang, mengharapkan negara tuan rumah
memberikan perlakuan yang adil serta merata dan perlindungan penuh
dan keamanan tanpa diskriminasi dalam rangka untuk mengamankan
dan memastikan investasi mereka agar dapat memperoleh keuntungan
yang diharapkan. Salah satu prinsip yang terkandung dalam BIT
adalah Most Favored Nations (MFN) di mana negara berjanji bahwa
mereka akan memperlakukan investor negara mitra itu perlakuan yang
"tidak akan kurang" dari investor dari negara-negara lain (tidak ada
diskriminasi antara investor asing dari negara yang berbeda). Prinsip
MFN ini adalah salah satu sumber sengketa di ICSID terutama terkait
dengan masalah yurisdiksi. Dalam tulisan ini, saya akan menganalisis
apakah keputusan ICSID terbaru tentang yurisdiksi dalam kasus
Teinver SA, Transportes de Cercanias SA & AUTOBUSES Urbanos
del Sur SA v Argentina Republic (Kasus Teinver) akhirnya dapat
mendefinisikan dan menyelesaikan masalah-masalah yang terkandung
dalam prinsip MFN di hukum investasi internasional khususnya pada
masalah yurisdiksi.
Kata kunci: Investasi, ICSID, Most Favored Nations, Perjanjian
Investasi Bilateral, Perjanjian Ekonomi
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Abstract
Investment is one of the channels of economic interaction between states
beside trade in the current globalization era. States cooperate with each
other by concluding Bilateral Investment Treaties (BIT) to define the
treatment that they will give to their counterpart’s investors. Foreign
investors, both from developed and developing states, expected the host
state to give them fair and equitable treatment and full protection and
security without discrimination in order to secure and ascertain their
investment to acquire expected profit. One of the principles contained in
the BITs is the Most Favored Nations (MFN) where a state promised
that they will treat the counterpart’s investor the treatment that is “no
less favorable” to investor from other states (no discrimination between
foreign investors from different states). This MFN principle is one of the
sources of dispute in ICSID especially related to the jurisdictional
matter. In this paper, I will analyze whether the latest ICSID decision
on jurisdiction in the case Teinver S.A., Transportes de Cercanías S.A.
& Autobuses Urbanos del Sur S.A. v. Argentine Republic (Teinver
Case) finally defined and settle the problems contained in the MFN
principle in international investment law specifically on the
jurisdictional matter.
Keyword: Investment, ICSDI, Most Favored Nations, Bilateral
Investment Treaty, Economic Agreement
I. The Most Favored Nations Principle
A. History of Most Favored Nations Principle
The MFN principle has been acknowledged in trade area for
centuries before the emergence of BITs. The earliest acknowledgment of
MFN principle is at eleventh century when French and Spanish cities
asked Arab princes of Western Africa to afford them treatments equal
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with the Italian traders.170 The MFN principle become the preferred
treatment when they unable to gain monopoly.171
However, during and after the first world war occurred, the
effects of chilly relationship between warring states and the destruction of
economy caused the MFN clause to be not in favorable position172 despite
attempts made by the League of Nations in International Economic
Conference of 1927.173
After the World War Two, states realized that non-discriminatory
treatment is important in the advancement of international economic
relations. While the states failed to create International Trade
Organization, they successfully adopted General Agreement on Tariffs
and Trade (GATT). One of the main principles of GATT is MFN.174
Since 1967, International Law Commission (ILC) started the study
on MFN Clause. It has successfully adopted Draft Articles on MostFavoured-Nation Clauses in 1978.175 Member States of UN however,
170
Endre Ustor, First Report on the Most-Favoured-Nation Clause, ¶10, U.N. Doc.
A/CN.4/213 (April 18, 1969).
171
Id. ¶19.
172
Id. ¶30-34.
173
Id. ¶37.
174
World Trade Organization, Understanding the WTO: Basics: Principles of the Trading
System, http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm (last visited
March 16, 2013).
175
Rep. of the Int‟l Law Comm‟n, 33rd Sess., May 8-July 28, 1978, U.N. Doc. A/33/10;
GAOR 33d Sess., Supp. No. 10 (1978).
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viewed that the work of ILC in MFN is a complex and therefore it give
additional time to the ILC to conduct further study.176
B. The Most Favored Nations Principle in International Trade
Since the inception of GATT and later its transformation into
World Trade Organization (WTO), MFN has become one of its most
important principles.177 The provisions that deal with the MFN principle
in WTO are Article I of GATT178 and Article II of the General Agreement
on Trade in Service (GATS).179 MFN in WTO means that states may not
discriminate between other states for the trade of like products180 or like
services.181
As the WTO member states are widespread throughout the world,
its mechanism and laws have been a standard in international trade. The
WTO Agreements acknowledge the exceptions to the MFN Principle
176
G.A. Res. 63/123, ¶6-8, U.N. Doc. A/RES/63/123 (Jan. 15, 2009).
See Appellate Body Report, European Communities – Conditions for the Granting of
Tariff Preferences to Developing Countries, ¶101, WT/DS246/AB/R (April 7, 2004);
Peter van den Bossche, The Law and Policy of the World Trade Organization 321 (2d Ed.
2008).
178
General Agreement on Tariffs and Trade, art. I, Oct. 30, 1947, 61 Stat. A-11, 55
U.N.T.S. 194 [hereinafter GATT].
179
General Agreement on Trade in Services art. II, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M.
1167 (1994) [hereinafter GATS].
180
GATT, supra note 17 art. I.
181
GATS, supra note 18 art. II.
177
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which are Free Trade Area182 and Custom Union.183 Therefore, state still
able to use its discretion to award certain states more trade benefit
compared to other WTO members.
C. The Most Favored Nations Principle in Investment
1. The Attempts to Create a Multilateral Investment Treaty
The opposite situation occurs in the field of international
investment. There are no widespread substantive rules of investment
protection that have been adopted. The efforts to create an investment
regime alongside GATT in 1947 under International Trade Organization
(ITO) have failed184 and compromises were made to put investment in
agenda at the 1995 WTO Ministerial Conference in Singapore.185 In the
1995 WTO Ministerial Conference, the Ministers are only agreeing to
establish a working group to examine the relationship between trade and
investment.186 Another effort to create a Multilateral Agreement on
182
GATT, supra note 17 art. XXIV:4.
GATT, supra note 17 art. XXIV:5.
184
Stephan W. Schill, The Multilateralization of International Investment Law 32-34
(2009).
185
See Zdenek Drabek, A Multilateral Agreement on Investment: Convincing the
Sceptics, WTO (June 1998), http://www.wto.org/english/res_e/reser_e/pera9805.doc
“[A]t the end, the topic was not included, and the countries have basically only agreed to
further explore on the analytical level the issues related to trade and investment.”
186
World Trade Organization, Ministerial Declaration ¶20, Dec. 13, 1996, 36 I.L.M. 218
(1997).
183
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Investment (MAI) by the Organization for Economic Co-operation and
Development (OECD) in 1998 has failed.187
However
the
attempts
to
create
widespread
multilateral
investment related convention are not utterly in vain. There are two
widespread multilateral investments related treaties that have been
successfully created. They are the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States (ICSID
Convention) in 1965 and the Multilateral Investment Guarantee Agency
(MIGA) in 1985 that was sponsored by the World Bank. The ICSID
Convention deals with the settlement of disputes in investment rather
than regulating worldwide investment like the WTO Agreements in
trade. Meanwhile MIGA deals with insurance framework for foreign
investment project. There are 147 states that ratified ICSID Convention188
while MIGA count 178 countries as member.189
The multilateral investment treaties that successfully adopted
often in the forms of regional investment treaties such as North American
Free Trade Agreement (NAFTA) or in the limited investment sector such
187
Organisation for Economic Co-operation and Development, International Investment
Agreements: Multilateral Agreement on Investment,
http://www.oecd.org/investment/internationalinvestmentagreements/multilateralagreemen
toninvestment.htm (last visited March 18, 2013).
188
International Centre for Settlement of Investment Dispute, Member States,
https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=Show
Home&pageName=MemberStates_Home (last visited March 18, 2013).
189
Multilateral Investment Guarantee Agency, MIGA Member Countries,
http://www.miga.org/whoweare/index.cfm?stid=1789 (last visited March 18, 2013).
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as Energy Charter Treaty.190 The United States also in the process of
negotiating the Trans Pacific Partnership with 10 pacific countries191 and
the Transatlantic Trade and Investment Partnership with the European
Union (EU)192 which contains the agreements on investment between the
parties.193 If the Transatlantic Trade and Investment Partnership
negotiations succeed, it will be the biggest free trade and investment
block.194
2. The Bilateral Investment Treaties and the MFN Clause
As there is no WTO version, i.e. overreaching investment world
organization, states have relied on multiple BITs and regional
arrangements. Thus, there have been no uniform MFN clauses drafted in
BITs. It depends on the states to draft the treatments that they want to
extend to previous BITs or give exclusively to another state or a group of
states.
190
Schill, supra note 23 at 42-43.
The United States in the Trans-Pacific Partnership, Office of the U.S. Trade
Representative, http://www.ustr.gov/about-us/press-office/factsheets/2011/november/united-states-trans-pacific-partnership (last visited April 26, 2013).
192
Office of the Press Secretary, Statement from United States President Barack Obama,
European Council President Herman Van Rompuy and European Commission President
José Manuel Barroso, The White House (Feb. 13, 2013), http://www.whitehouse.gov/thepress-office/2013/02/13/statement-united-states-president-barack-obama-europeancouncil-presiden.
193
Id.; The United States in the Trans-Pacific Partnership, supra note 30.
194
Countries and Regions: United States, European Commission,
http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/ (last visited
April 26, 2013).
191
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The MFN clause in investment at least has 3 components. They
include, first, a beneficiary that encompasses the investors or the
investments entitled to the MFN treatment, second, a comparator which is
another investor and investment that set an MFN treatment standard, and
third, a standard of treatment that is expected by the investors or the
investments.195 These components could be expanded to include the scope
of application of the MFN clause196 and exceptions such as in taxation197
or special arrangements.198 The MFN clause applies in ‗like situations‘ or
‗in like circumstances‘.199
An MFN clause is the future commitment of states200 to treat the
foreign investors equally with the treatment contained in the newer BIT
and their latest regulation. However the extend of the application of MFN
principle in the dispute settlement has always been the source of
controversy.201
195
Kenneth J. Vandevelde, Bilateral Investment Treaties: History, Policy, and
Interpretation 341 (2010) at 339-343.
196
Vandevelde, supra note 195 at 339.
197
Vandevelde, supra note 195 at 346.
198
Vandevelde, supra note 195 at 339 (Special arrangements such as customs union, free
trade area or multilateral and regional agreements on investment).
199
Andreas R. Ziegler, Most-Favoured-Nation (MFN) Treatment, in Standards of
Investment Protection 59, 74 (August Reinisch ed., 2008).
200
Id. at 65.
201
August Reinisch, Introduction: Interrelationship of Standards, in Standards of
Investment Protection 1, 6 (August Reinisch ed., 2008); Yannick Radi, The Application
of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral
Investment Treaties: Domesticating the “Trojan Horse”, 18 European Journal of
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Nonetheless, there is considerable uniformity in the MFN Clause
although variations still exist among them. This might happen because
several European states202 have drafted Model BIT which helps them to
guide and standardized the treatment that will give to their counterparts
commonly with developing states.203 The Model BIT could be customized
by a state at certain provisions to accommodate demand from different
counterpart states.204 As the developing states started to create BITs
among themselves, the BITs concluded often based on the previous BITs
that they have concluded with the developed states.205
D. The MFN Principle Jurisprudence Before the Teinver Case
There are numerous cases decided in ICSID that relate to the MFN
principle. The first case that involved the MFN principle was Asian
Agricultural Products Ltd (AAPL) v. Srilanka. AAPL argued that the
ICSID Panel should apply the more favorable liability standards
contained in the 1981 Switzerland-Sri Lanka BIT as opposed to UK-Sri
Lanka BIT.206 The Panel reasoned the Switzerland-Sri Lanka BIT does not
International Law 757, 760 (2007),
http://ejil.oxfordjournals.org/content/18/4/757.abstract.
202
Vandevelde, supra note 195 at 1.
203
Vandevelde, supra note 195 at 1.
204
Vandevelde, supra note 195 at 3.
205
Vandevelde, supra note 195 at 1.
206
Asian Agricultural Products Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3,
Final Award, ¶9 (June 27, 1990).
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adopted a ―strict liability‖ standard207 and thus in the absence of specific
provision in the BIT, the Panel must apply Switzerland-Sri Lanka BIT as a
lex specialis rather than international law as lex generalis.208
Perhaps, the first and most famous case in ICSID that related with
the application of the MFN principle in the ICSID jurisdiction is Maffezini
v. Spain. The Maffezini case involved the same Spain-Argentina BIT with
the current case although the respondent is Spain. Maffezini as the
claimant argued that the court should apply the Chile-Spain BIT that
contains more favorable provision,209 which the claimant does not have to
wait for 18 months in local court before they able to submit the case to
ICSID.210 The Panel agreed with the Claimant‘s argument and noting that
there is no requirement for the Claimant to exhaust the local remedies,
thus the case may proceed.211 The Maffezini reasoning has been followed
by cases such as Siemens,212 Gas Natural213 and Suez Vivendi214 but
rejected, for example, in Salini,215 Plama216 and Berschader.217
207
"Id. ¶45 (“Strict liability" means the Sri Lankan Government is “liable for any
destruction of the investment even if caused by persons whose acts arc not attributable to
the Government and under circumstances beyond the State's control.”)
208
Id. ¶54.
209
Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7,
Decision of the Tribunal on Objectons to Jurisdiction, ¶1 (Jan. 25, 2000).
210
Id. ¶39-40.
211
Id. ¶62.
212
Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on
Jurisdiction, ¶121 (Aug. 3, 2004).
213
Gas Natural SDG, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/10,
Decision of the Tribunal on Preliminary Questions on Jurisdiction, ¶30 (June 17, 2005).
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JURNAL OPINIO JURIS
II.
Vol. 14  September-Desember 2013
Teinver v. Argentine Republic
A. Background of the Issue
Teinver
(Transportes)
(collectively,
S.A.
and
(Teinver),
Autobuses
―Claimants‖)
Transportes
Urbanos
are Spanish
del
de
Cercanias
Sur
S.A.
S.A.
(Urbanos)
companies218 that owned
investments in Aerolíneas Argentinas S.A. (ARSA) and Austral-Cielos del
Sur S.A. (AUSA) (collectively, ―the Argentine Airlines‖).219
The source of dispute between the parties were the alleged
unlawful nationalization and other measures related to Argentine
Airlines taken by the Argentine Congress in December 2008220 and also
214
Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v.
Argentine Republic, ICSID Case No. ARB/03/19, Decision on Jurisdiction, ¶62-63, 68,
(Aug 3, 2006).
215
Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan,
ICSID Case No. ARB/02/13, Decision on Jurisdiction, ¶115-119 , (Nov. 29, 2004) (The
ICSID Panel refused to accept the jurisdiction because the MFN clause does not explicitly
include the dispute resolution procedure nor implicitly by adding the words “all rights” or
“all matters” in the MFN clause.).
216
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24,
Decision on Jurisdiction, ¶216-227, (Feb. 8, 2005) (In Plama, the ICSID Panel rejected
the Maffezini approach because the expansion of the MFN principle to dispute settlement
must explicitly stated by the state parties in the BIT).
217
Vladimir Berschader & Moise Berschader v. The Russian Federation, Arbitration V
(080/2004), ¶185-208., (April 21, 2006) (The terms “all matters” in the MFN clause
cannot expand to dispute settlement because it cannot be interpreted literally nor the
parties to the BIT have the intention to do so.).
218
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v.
Argentine Republic (Teinver), ICSID Case No. ARB/09/1, Decision on Jurisdiction, ¶1
(Dec. 21, 2012).
219
Id. ¶2.
220
Id. ¶8.
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creeping expropriation that allegedly started since October 2004.221
Disputes centered on Argentine regulation on airfare caps between 2002
and 2008 and disagreement on remedy for the expropriation of the
Claimant‘s shares in the airlines.222
The Claimants requested arbitration against Respondent on
December 11, 2008.223 The Claimants also invoked Argentina‘s consent to
dispute settlement through ICSID Treaty and MFN clause contained in
Article IV(2) 1991 Agreement between the Argentine Republic and the
Kingdom of Spain on the Reciprocal Promotion and Protection of
Investments (Spain-Argentina BIT) and the procedural clause found in
Article 1991 Bilateral Investment Treaty between the United States of
America and the Argentine Republic (U.S.-Argentina BIT).224
The Claimants appointed Henri C. Alvarez while the Respondent
appointed Dr. Kamal Hossain and both parties agreed to ICSID proposal
to appoint Judge Thomas Buergenthal as the President of the Tribunal.225
221
Id. ¶8.
Id. ¶8.
223
Id. ¶9.
224
Id. ¶10.
225
Id. ¶14, 16, 19-20.
222
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B. The MFN Issue in Teinver Case
1. Spain-Argentina BIT as Jurisdictional Basis
Article IV(2) of the Spain-Argentina BIT called for treatment that
shall be no less favorable than accorded by each party to investors from a
third country in all matters that governed by the treaty.226 The MFN
treatment does not extend for treatment from future treaties made in
connection with free trade areas, customs unions, common markets, a
regional integration agreement and a previous treaty regarding
organization of mutual economic assistance,227 and tax deductions and
similar privileges.228
As for the investor-state dispute settlement provision, the SpainArgentina BIT required the investor to settle the dispute amicably with
the state party after the dispute raised.229 After 6 months, if the investor
and the state party concerned failed to reach settlement, the investor may
bring the claim to the tribunal in the territory where the investment was
made.230 The investor is only able to bring the claim to ICSID231 18 months
226
Agreement on the Reciprocal Promotion and Protection of Investments, SpainArgentina, art. IV(2), Oct. 3, 1991, 1699 U.N.T.S. 202.
227
Id. art. IV(3).
228
Id. art. IV(4).
229
Id. art. X(1).
230
Id. art. X(2).
231
Id. art. X(4).
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after the investor initiated the judicial proceeding in the national
tribunals232 or if both parties agreed to.233
2.The Invocation of U.S.-Argentina BIT
The U.S.-Argentina BIT has the ‗fork in the road‘ dispute
settlement clause where the investors covered could choose to submit the
dispute to the national courts, administrative tribunals,234 any applicable,
previously agreed dispute-settlement procedures235 or six months after
the dispute arisen has passed and the parties have been through
consultation and negotiation236 for settlement by binding arbitration such
as ICSID237 or any other arbitration institution as agreed.238
The Claimants in their Request for Arbitration and Memorial on
the Merits invoked Argentina‘s consent to proceeding in ICSID through
the MFN clause contained in the Spain-Argentina BIT and took the
example of the dispute settlement mechanism contained in the 1991
Bilateral Investment Treaty between the United States of America and the
Argentine Republic (U.S.-Argentina BIT).239
232
Id. art. X(3)(a).
Id. art. X(3)(b).
234
Treaty Concerning the Reciprocal Encouragement and Protection of Investment, U.S.Argentina, art. VII(2)(a),Nov. 14, 1991, S. Treaty Doc. No. 103-2 (1993).
235
Id. art. VII(2)(b).
236
Id. art. VII(3)(a)(i).
237
Id. art. VII(3)(a).
238
Id. art. VII(3)(a)(iv).
239
Teinver, supra note 56, ¶138.
233
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3.The Invocation of Australia-Argentina BIT
Argentina in the Memorial of Jurisdiction argued the six month of
negotiation is ―one of the condition‖ that must be satisfied to invoke
Respondent‘s consent.240 Then, the Claimants in their Request for
Arbitration and Counter-Memorial argued that the Tribunal had
jurisdiction over the dispute because the Claimants also have satisfied the
conditions set in the Australia-Argentina BIT that applies through the
Spain-Argentina BIT‘s MFN clause.241 The Australia-Argentina BIT was
adopted on August 23, 1997. The BIT regulated that an investment
dispute may be brought to ICSID242 if the dispute cannot be settled
amicably.243
Argentina objects to the Claimants‘ assertion to rely on the
Australia-Argentina BIT because it is not timely and must be dismissed.244
The Claimants claimed the invocation of Australia-Argentina BIT is not
untimely because the Claimants have relied on MFN clause ―even before
they submitted their Request for Arbitration‖245 and to counter
240
Teinver, supra note 56, ¶78.
Teinver, supra note 56, ¶138.
242
Agreement on the Promotion and Protection of Investments art. 13(3)(a), AustraliaArgentina, Aug. 23 1995, 1985 U.N.T.S. 85.
243
Id. art. (13)(1).
244
Teinver, supra note 56, ¶148.
245
Teinver, supra note 56, ¶158.
241
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Argentina‘s objection ―with respect to the six-month waiting period in its
Memorial on Jurisdiction.246
The Claimants should have consistently relied on the same
comparator BIT from the start. Although the Claimants argue that they
have relied on MFN clause from the start, they should have made clear
which another state‘s BIT that they will use as comparator BIT. The switch
of comparator BIT is confusing and made difficult for Argentina as the
Respondent state to make the argument accordingly to fit the comparator
BIT which dispute settlement clause has been used by the Claimants.
C. Panel Decision and Reasoning
The Claimants in their written and oral submissions argue that (1)
the Panel has jurisdiction over the case due to the MFN clause in SpainArgentina BIT that makes it possible for the Claimants to rely on more
favorable treatment in the Australia-Argentina BIT247 and even if the
jurisdiction is based U.S.-Argentina BIT, there will be no contradiction
since the Claimants have not submitted the case to Argentine Courts.248
(2) The Claimants already relied on MFN Clause before the Request for
Arbitration submitted and the invocation of Australia-Argentina BIT in
the Counter-Memorial on Jurisdiction is in response of to Argentina‘s
246
Teinver, supra note 56, ¶158.
TTeinver, supra note 56, ¶138.
248
Teinver, supra note 56, ¶157.
247
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objection to 6-month waiting period in Memorial on Jurisdiction.249 In the
alternative, the Claimants also argued that the Claimants have fulfilled
the requirements set forth in Article X of Spain-Argentina BIT or excused
for reasons of futility.250
The Respondent argued that the MFN clause is not applied
because: (1) the jurisdictional requirements as contained in Article X of
the Spain-Argentina Treaty is not to be set aside or disregarded251 and
must be accepted by investor to invoke arbitration clause.252 (2) Both
Argentina and Spain never accepted ―the application of the Treaty‘s MFN
clause‖ to invoke their consent to ICSID253 and thus it should be deemed
to be authentic interpretation based on Article 31(3) of the Vienna
Convention on the Laws of Treaty (VCLT).254 (2) The invocation of the
Australia-Argentina MFN in the Claimant‘s Counter Memorial is against
the principle of good faith and barred by estoppels.255
249
Teinver, supra note 56, ¶158.
Teinver, supra note 56, ¶73(ii) (The Claimant argue that it will be impossible or
difficult for them to settle the claim within 6 months and to start the judicial proceeding
for 18 months in accordance with Article X of the Spain-Argentina BIT before a dispute
may be submitted to ICSID.)
251
Teinver, supra note 56, ¶140.
252
Teinver, supra note 56, ¶141.
253
Teinver, supra note 56, ¶146.
254
Teinver, supra note 56, ¶147.
255
Teinver, supra note 56, ¶148.
250
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The Panel decides that it had jurisdiction over the case based on
the MFN clause of the Spain-Argentina BIT.256 The panel reasoned that (1)
MFN clause of Spain-Argentina BIT contained the words ―all matters‖
which unambiguously inclusive and Claimants have satisfied the
requirements contained in Article 13 of Australia-Argentina BIT.257
Further, the U.S.-Argentina BIT and Australia-Argentina BIT have more
advantages compared to Spain-Argentina BIT.258 Besides, the Claimants
have not selected the ‗fork on the road‘ under U.S. Argentina BIT where
they will be unable to bring the case to ICSID if it has been brought to
local court.259 (2) There is no harm for the Respondent caused by the
Claimants‘ change of reliance to Australia-Argentina BIT from U.S.
Argentina BIT.260
III.
The Teinver Decision: Is the Panel Finally Defined and Solve
the Confusion on the Application of MFN Clause in the InvestorState Dispute Resolution?
In Teinver, the Panel streamlined the application of MFN clause to
(1) whether or not the MFN clause in Spanish-Argentina BIT applies to
investment dispute resolution and (2) whether or not it is fair for the
256
Teinver, supra note 56, ¶186.
Teinver, supra note 56, ¶186.
258
Teinver, supra note 56, ¶184.
259
Teinver, supra note 56, ¶184.
260
Teinver, supra note 56, ¶185.
257
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Claimants to add another comparator BIT as basis for the Panel‘s
jurisdiction in the middle of the proceeding?
A. The Application of the MFN Clause in Dispute Resolution
The problems in the invocation of MFN clause often stemmed
from the disagreement on the interpretation of the MFN clause,
specifically on whether it should be interpreted broadly or strictly.
According to August Reinisch, the most contentious issue in the
interpretation of MFN clauses lies not on the substantive standard of
investment treatment but rather on the extent of the MFN clause in
dispute settlement, particularly in jurisdictional matters,261 as in the
current case.
The Panel in their reasoning mentioned the ordinary meaning
interpretation of Article IV262 and noted that the Spain-Argentine BIT
contains an MFN clause that applied in all matters regulated by the BIT263
thus supposed to include the dispute settlement clause. However, the BIT
does provide exceptions for the MFN clause. They are the treatment
granted to investors of a third state that participate in free trade area,
customs union, common market, regional integration or organization of
261
Reinisch, supra note 40, at 6.
Teinver, supra note 56, at 33.
263
Teinver, supra note 56, ¶160; Agreement on the Reciprocal Promotion and Protection
of Investments, supra note 64, art. IV(2).
262
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mutual economic assistance concluded by agreement before the BIT264 and
taxation.265 Again, here, Spain and Argentina as the state parties did not
explicitly exclude the dispute settlement from the exception of the MFN
clause treatment.
The Panel also stated that investment arbitration jurisprudence
especially in the matters of ordinary meaning of the MFN clause has not
been consistent.266 Although, the Panel noted that in cases related to MFN
clause within Spain-Argentina BIT such as Maffezini, Gas Natural, Suez
InterAguas, Suez Vivendi and Impregilo, the Panels in respective cases
decided that the term ―all matters‖ applies to Article X that concerned on
Dispute Resolution.267
In order to analyze the problem further, the Panel also relied on
UNCTAD‘s MFN Treatment publication268 that sorts the application of
MFN in jurisdictions into two categories. The first category is the
admissibility requirements where the Claimants ―have invoked the MFN
treatment clause to override a procedural requirement that constitutes a
264
Agreement on the Reciprocal Promotion and Protection of Investments, supra note 64,
art. IV(3).
265
Agreement on the Reciprocal Promotion and Protection of Investments, supra note 64,
art. IV(4).
266
Teinver, supra note 56, ¶165-166.
267
Teinver, supra note 56, ¶165.
268
Teinver, supra note 56, ¶168-172.
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condition for the submission of a claim to international arbitration‖269 as
occurred in the current case. In the previous cases that involved
admissibility such as Maffezini, Siemens, Gas Natural, National Grid,
Suez InterAguas, AWG Group, Impregilo, Hothcief and Abaclat showed
that generally the MFN treatment clause could override a procedural
requirement.270 Exception where the Panels refused to override a
procedural requirement only occurred in Wintershall, ICS and Daimler.271
The second category is where a Claimant attempts to extend the
arbitral tribunal‘s scope of jurisdiction beyond the BIT.272 It worth noting
that the Panels in previous cases such as Salini, Plama, Telenor,
Berschader and Tza Yap Shum has been generally refused to extend the
arbitral tribunal‘s scope of jurisdiction beyond the BIT, except in
RosInvestCo case.273
The Panel tried to clarify the different reasoning that caused
different outcomes in the cases that involved the application of MFN to
dispute resolution. The Panel noted that each case has different facts that
influenced the outcome of the case whereas the Panel that asked
269
U.N. Conference on Trade and Development, Most Favoured-Nation Treatment:
UNCTAD Series on Issues in International Agreements II, at 66,
UNCTAD/DIAE/IA/2010/1, U.N. Sales No. 10.II.D.19; Teinver, supra note 56, ¶169.
270
Teinver, supra note 56, ¶170.
271
Teinver, supra note 56, ¶170.
272
U.N. Conference on Trade and Development, supra note 107, at 67; Teinver, supra
note 56, ¶169.
273
Teinver, supra note 56, ¶171.
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admissibility requirements does not consider the extent of the scope of
jurisdiction and vice versa.274
The panel turns to Maffezini whereas it listed the dispute
resolution related clause that may not be overridden by an MFN clause
due to public policy.275 The Panel in Teinver also notes that this approach
has been generally preferred although it has been criticized in Salini and
Wintershall as not adequate to prevent forum shopping and questioned in
Plama as there is no basis for these requirements.276 As the current case
involves admissibility requirements, the Panel agreed that the case may
proceed as it does not cross the boundary of the jurisdiction.277
Notably, Wintershall deemed that the requirement to pursue local
remedies for 18 months in an Argentinean Court is a condition to the host
State‘s consent for arbitration and an admissibility obstacle.278 However,
this approach is in the minority and could be deemed to depart from the
rationale of the differentiation between the admissibility where time is the
only wall for the Claimants to submit the case to ICSID and expansion of
274
Teinver, supra note 56, ¶177.
Maffezini, supra note 47, ¶63 (They are exhaustion of local remedies, „the fork in the
road‟ clause, changing the arbitration forum, the agreement on a particular forum which is
a highly institutionalized and very precise procedural mechanism such as NAFTA.)
276
Teinver, supra note 56, ¶180; Plama supra note 54, ¶221.
277
Teinver, supra note 56, ¶182.
278
Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No ARB/04/14,
Award, ¶160(3) (Dec. 8 2008).
275
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jurisdiction.279 Besides, the MFN clause in Argentina-Germany BIT which
became the basis in Wintershall deemed to be more constrained280 than
the Spain-Argentina BIT.
It is worth noting that if the Claimants used the procedural aspect
in the Spain-Argentina BIT, the case could be end up in the ICSID anyway
albeit with more procedural hurdles without the need to exhaust local
remedies. Therefore, the Australia-Argentina BIT could be deemed to be
more favorable than the Spain-Argentina BIT as it does not requires the
total twenty-four months time that divided with the six months for the
investor to tried to settle the claim amicably281 and eighteen months time
for investor to brought the claim in local court.282
The Panel also noted that the Claimants argued on limited
application
of
procedural
requirements
specifically
whether
the
Claimants may bypass the negotiation and local court part of the dispute
resolution.283 If the Claimants argued in more broad application such as
replacing the arbitral forum or rules or to broaden the issue that may be
arbitrated,284 there will be much more complication that occurs. The
279
Andrea Marco Steingruber, Consent in International Arbitration 314 (2012).
Teinver, supra note 56, ¶160.
281
Agreement on the Reciprocal Promotion and Protection of Investments, supra note 64,
art. X(1)-X(2).
282
Agreement on the Reciprocal Promotion and Protection of Investments, supra note 64,
art. X(2)-X(3).
283
Teinver, supra note 56, ¶182.
284
Teinver, supra note 56, ¶182.
280
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limited application of procedural requirements is a gateway issue in the
admissibility of the Claimants‘ claim. The negotiation and local court
requirements are the gate to a room that must be opened by the Claimants
to bring the claim.
This is not the case where the Claimants requested to change the
arbitral forum or rules that could be compared to request to open a door
to another room that only open to investors from third state. If those
clauses are overridden, there could be forum shopping where the
investors choose the forum that assumed to be favorable despite it is not
originally available in their BIT.
B. The Change in the Comparator BIT
The second problem is on whether or not it is right for the
Claimants to change the comparator BIT from U.S.-Argentina to
Australia-Argentina during the proceeding and its relation with the ‗fork
in the road clause‘ contained in U.S.-Argentina BIT. The application of the
‗fork in the road clause' means that an investor that benefitted under the
U.S.-Argentina BIT must choose either going to the local court or ICSID.
The Claimants argued that the invocation of the AustraliaArgentina BIT in the Counter-Memorial on Jurisdiction did not matter
since they already relied on MFN clause and Respondent only raised
objection with respect to the six month waiting period in the Memorial on
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Jurisdiction.285 Contrary, the Respondent argued that the invocation of the
Australia-Argentina MFN through MFN Clause in the Counter-Memorial
of Jurisdiction is ―against the principle of good faith and should be barred
by estoppel.‖286
The argument of Respondent is understandable since if the
Claimants changed their basis for argument specifically BIT that they
used as basis for jurisdiction of the Court, it will be difficult for the
Respondent to prepare the appropriate defense. It will also difficult for
the Panel to decide which comparable BIT should become the basis of
jurisdiction.
The Panel however, declared that the addition of AustraliaArgentina BIT did not preclude the jurisdiction of the Panel over the
case.287 The Panel noted that both the U.S.-Argentina BIT and AustraliaArgentina BIT have the same advantage, which is the ―possibility to
access arbitration with fewer procedural preconditions‖288 therefore there
is no actual or perceived harm caused.289 Besides that, the Claimants had
not bring the claim to the local court which constituted a ‗fork in the road‘
for the application of the U.S.-Argentina BIT290 and it has followed the
285
Teinver, supra note 56, ¶158.
Teinver, supra note 56, ¶148.
287
Teinver, supra note 56, ¶186.
288
Teinver, supra note 56, ¶184.
289
Teinver, supra note 56, ¶185.
290
Teinver, supra note 56, ¶184.
286
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negotiation requirement contained in the provision of dispute resolution
in Australia-Argentina BIT.291
The later requirement, i.e. to follow the whole procedural
requirements contained in the BIT that invoked by MFN clause is
important to prevent the investors to cherry picking the dispute
resolution clause.
Conclusion & Recommendation
The Panel in the Teinver case has strengthened the idea that MFN
clause could extend to the admissibility issue but not to expand the scope
of the jurisdiction or to change the forum of arbitration. This approach,
firstly decided in Maffezini has been generally accepted in numerous
ICSID decisions. Although there are some cases that dissent to this
approach, notably in Winterhall but it can be considered to be a minority
approach.
The Panel also clarified that in order to invoke the benefit of MFN
Clause in dispute resolution, the Claimants must prove that comparator
BIT has more favorable dispute resolution clause compared to the current
BIT that applied to the investment. Such benefit only applies to the
admissibility requirement and the Claimants must follow the whole
dispute resolution clause in the comparator BIT. Although the ICSID
291
Teinver, supra note 56, ¶186.
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cases will not bind future application of MFN clause but the reference to
the current case specifically in the application of MFN principle in the
admissibility issue is recommended.
In order to avoid the jurisdictional problem within the dispute
resolution system, it will be highly recommended for the drafter of BITs
to specifically and explicitly mention whether or not the MFN clause
applied to dispute resolution between host state and the investors.
However, the Panel should have come to different conclusion in
regard to the switch of comparator BIT in the middle of proceeding like in
the Teinver case. Although the Panel accept the jurisdiction because the
Claimants have fulfilled the jurisdictional requirements both in U.S.Argentina BIT and Australia-Argentina BIT, but, if such thing ensue again
in the future, it will be difficult for the respondent states to prepare the
proper defense accordingly.
BIBLIOGRAPHY
A. Articles/Books/Reports
Appellate Body Report, European Communities – Conditions for the Granting of Tariff
Preferences to Developing Countries, WT/DS246/AB/R (April 7, 2004);
Drabek, Zdenek, A Multilateral Agreement on Investment: Convincing the Sceptics,
WTO (June 1998), http://www.wto.org/english/res_e/reser_e/pera9805.doc
European Commission, Countries and Regions: United States,
http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/ (last
visited April 26, 2013).
G.A. Res. 63/123, U.N. Doc. A/RES/63/123 (Jan. 15, 2009).
International Centre for Settlement of Investment Dispute, Member States,
https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=
ShowHome&pageName=MemberStates_Home (last visited March 18, 2013).
Multilateral Investment Guarantee Agency, MIGA Member Countries,
http://www.miga.org/whoweare/index.cfm?stid=1789 (last visited March 18, 2013).
128
JURNAL OPINIO JURIS
Vol. 14  September-Desember 2013
Office of the Press Secretary, Statement from United States President Barack Obama,
European Council President
Herman Van Rompuy and European Commission President José Manuel Barroso,
The White House (Feb. 13, 2013), http://www.whitehouse.gov/the-pressoffice/2013/02/13/statement-united-states-president-barack-obama-europeancouncil-presiden.
Office of the U.S. Trade Representative, The United States in the Trans-Pacific
Partnership,
http://www.ustr.gov/about-us/press-office/fact-sheets/2011/november/united-statestrans-pacific-partnership (last visited April 26, 2013
Organisation for Economic Co-operation and Development, International Investment
Agreements:
Multilateral Agreement on Investment,
http://www.oecd.org/investment/internationalinvestmentagreements/multilateralagre
ementoninvestment.htm (last visited March 18, 2013).
Radi, Yannick, The Application of the Most-Favoured-Nation Clause to the Dispute
Settlement Provisions of Bilateral Investment Treaties: Domesticating the “Trojan
Horse”, 18 European Journal of International Law 757 (2007),
http://ejil.oxfordjournals.org/content/18/4/757.abstract.
Reinisch, August (ed), Standards of Investment Protection, (2008);
Rep. of the Int‟l Law Comm‟n, 33rd Sess., May 8-July 28, 1978, U.N. Doc. A/33/10;
GAOR 33d Sess., Supp. No. 10 (1978).
Schill, Stephan W., The Multilateralization of International Investment Law (2009).
Steingruber, Andrea Marco, Consent in International Arbitration (2012).
U.N. Conference on Trade and Development, Most Favoured-Nation Treatment:
UNCTAD Series on Issues in International Agreements II, at 66,
UNCTAD/DIAE/IA/2010/1, U.N. Sales No. 10.II.D.19
Ustor, Endre, First Report on the Most-Favoured-Nation Clause, U.N. Doc. A/CN.4/213
(April 18, 1969).
Van den Bossche, Peter, The Law and Policy of the World Trade Organization (2d Ed.
2008).
Vandevelde, Kenneth J., Bilateral Investment Treaties: History, Policy, and Interpretation
(2010),
World Trade Organization, Understanding the WTO: Basics: Principles of the Trading
System,
http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm (last visited March 16,
2013).
B. Cases
Asian Agricultural Products Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3,
Final Award,
(June 27, 1990).
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Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7,
Decision of the Tribunal
on Objectons to Jurisdiction, (Jan. 25, 2000).
Gas Natural SDG, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/10,
Decision of the Tribunal
on Preliminary Questions on Jurisdiction, ¶30 (June 17, 2005).
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24,
Decision on
Jurisdiction, ¶216-227, (Feb. 8, 2005).
Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan,
ICSID Case
No. ARB/02/13, Decision on Jurisdiction, ¶115-119 , (Nov. 29, 2004).
Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on
Jurisdiction, ¶121
(Aug. 3, 2004).
Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v.
Argentine Republic, ICSID
Case No. ARB/03/19, Decision on Jurisdiction, ¶62-63, 68, (Aug 3, 2006).
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v.
Argentine Republic (Teinver),
ICSID Case No. ARB/09/1, Decision on Jurisdiction, ¶1 (Dec. 21, 2012).
Vladimir Berschader & Moise Berschader v. The Russian Federation, Arbitration V
(080/2004), ¶185-208., (April
21, 2006)
Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No ARB/04/14,
Award, ¶160(3) (Dec. 8 2008).
C. Legislations/Treaties
Agreement on the Promotion and Protection of Investments, Australia-Argentina, Aug. 23
1995, 1985 U.N.T.S. 85.
Agreement on the Reciprocal Promotion and Protection of Investments, Spain-Argentina,
Oct. 3, 1991, 1699 U.N.T.S. 202.
General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194
General Agreement on Trade in Services Apr. 15, 1994, Marrakesh Agreement
Establishing the World
Trade Organization, 1869 U.N.T.S. 183, 33 I.L.M.
Treaty Concerning the Reciprocal Encouragement and Protection of Investment, U.S.Argentina, Nov. 14,
1991, S. Treaty Doc. No. 103-2 (1993).
World Trade Organization, Ministerial Declaration ¶20, Dec. 13, 1996, 36 I.L.M. 218
(1997).
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RESENSI BUKU
Judul
: Refleksi dan Kompleksitas Hukum Humaniter
Penulis buku
: Prof. KGPH. Haryomataram, SH., Brigjen (Purn)
Penerbit
: Pusat Studi Hukum Humaniter dan HAM
(terAs) Fakultas Hukum Universitas Trisakti
Bahasa
: Indonesia
Jumlah halaman
: x + 478
Tahun penerbitan
: 2012
Pembuat resensi
: Ratih Wulandari, S.IP.
Hukum Humaniter secara lengkap
diterjemahkan
dari
International
Humanitarian Law Applicable in Armed
Conflict. Namun, pada masa lalu Hukum
Humaniter juga dikenal sebagai Hukum
Konflik Bersenjata atau Hukum Perang.
Hukum
Humaniter
mengatur
pelaksanaan konflik termasuk alat, cara
dan metode yang digunakan dalam
konflik senjata (sering dipersamakan
dengan
perang),
serta
perlindungan
korban dari kejadian konflik bersenjata di tingkat nasional maupun
internasional.
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Pada prinsipnya, Hukum Humaniter berlaku setelah perang atau
konflik senjata terjadi, tidak berkaitan dengan melarang perang dan tidak
menentukan pihak yang benar atau salah dalam perang.
―Prinsip
pembeda‖ (distinction principle) dalam Hukum Humaniter adalah antara
golongan combatant, yaitu pihak yang aktif terlibat dalam permusuhan,
dan penduduk sipil (civil population) yang tidak aktif turut serta dalam
konflik. Sumber Hukum ini berasal dari berbagai konvensi dan protokol,
terutama Hukum Den Haag (The Hague Laws), yang mengatur tentang
alat dan cara berperang, dan Hukum Jenewa (The Geneva Laws), yang
mengatur tentang perlindungan terhadap mereka yang menjadi korban
perang.
Pada dasarnya bentuk konflik senjata ada yang bersifat internasional,
di mana konflik terjadi antara dua negara atau lebih, dan konflik senjata
bersifat non-internasional, di mana konflik terjadi di salah satu negara
antara aktor non-pemerintah dengan pemerintah. Dalam konflik senjata
bersifat internasional, seluruh perangkat Hukum Humaniter berlaku,
namun dalam konflik yang bersifat non-internasional yang berlaku hanya
Konvensi Jenewa 1949, dan/atau Protokol Tambahan II 1977. Pasal 3
Konvensi Jenewa 1949 menetapkan bahwa orang yang tidak terlibat
secara aktif dalam konflik senjata (termasuk anggota Angkatan Perang
yang meletakkan senjata mereka atau karena terluka, sakit, ditahan)
harus diperlakukan dengan manusiawi tanpa diskriminasi ras, agama
atau kepercayaan, gender, keturunan atau harta, atau kriteria lainnya.
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Dalam konflik yang bersifat non-internasional, orang yang tidak
terlibat aktif dalam konflik mempunyai hak dasar manusia yang tidak
dapat diambil dalam keadaan apa pun dan harus dilindungi, yaitu (1)
terhadap tindakan segala kekerasan atas jiwa dan raga, (2) dari tindakan
yang terjadi terkait dengan konflik senjata, seperti penangkapan,
penahanan dan pengasingan, harus diinformasikan dalam bahasa yang
dimengerti dan memperoleh perlindungan selama masa penahanan, (3)
dari penjatuhan hukuman tanpa didahului keputusan pengadilan dengan
standar yang dapat diakui oleh bangsa beradab lainnya, (4) tempat
penahanan perempuan harus dipisah kecuali keluarganya pun ditahan,
dan (5) Orang yang terluka atau sakit harus dikumpulkan dan dirawat di
mana
terdapat sebuah
badan
humaniter netral,
seperti Komite
Internasional Palang Merah, dan dalam pengaturan perawatan tersebut
membutuhkan
persetujuan
khusus
dengan
pihak-pihak
konflik.
Pelaksanaan ketentuan tersebut tidak mengubah kedudukan hukum
pihak-pihak dalam konflik.
Buku
ini
merupakan
kumpulan
pemikiran
Prof.
KGPH.
Haryomataram, seorang tokoh ternama Indonesia di bidang Hukum
Humaniter, yang telah disampaikan dalam berbagai pertemuan ilmiah
seperti seminar, lokakarya, pemaparan maupun konferensi hukum
humaniter baik di tingkat nasional maupun internasional, termasuk
dalam pidato pengukuhan Guru Besar Ilmu Hukum di Universitas
Trisakti. Puluhan buku penulis mengenai Hukum Humaniter telah
diterbitkan.
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Buku terdiri dari lima bab, di mana bab I adalah tipe-tipe konflik
bersenjata, bab II adalah mengenai konflik internal dan permasalahannya,
bab III berjudul konflik bersenjata di era abad ke-20, bab IV tentang
aspek-aspek tanggung jawab negara dalam hukum humaniter, dan bab V
bertemakan masalah-masalah lain.
Buku Hukum Humaniter menjelaskan subyek yang menarik namun
kompleks, dengan cara yang dapat mudah dipahami, untuk orang awam
sekalipun yang bukan lulusan Sarjana Hukum, mengenai teori-teori
termasuk
uraian,
penjelasan
dan
analisa
perkembangan
hukum
humaniter, serta permasalahan praktis yang dihadapi oleh negara-negara.
Situasi dan kondisi yang relevan dan faktual untuk Indonesia telah dilihat
dari aspek Hukum Humaniter termasuk mengenai keadaan darurat,
terorisme, situasi kekerasan dan ketegangan dalam negeri, perang
pembebasan negara (self-determination), dan negara netral dalam sengketa
bersenjata di laut.
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ISTILAH HUKUM
Kemal Haripurwanto, S.H., LL.M.
Jus dispositivum
Jus Dispositivum means the law adopted by consent. It is the category of
international law that consists of norms derived from the consent of states. It is
founded on the self-interest of the participating states. Jus dispositivum binds
only those states consenting to be governed by it.
Norma yang mengatur. Ia hanya bersifat mengatur, oleh karenanya tidak
memaksa dapat disimpangi. Pengertian jus cogen menunjuk pada kaidah
atau norma tertentu
Civil law
Civil law (or civilian law) is a legal system originating in Western Europe,
intellectualized within the framework of late Roman law, and whose most
prevalent feature is that its core principles are codified into a referable system
which serves as the primary source of law. This can be contrasted with common
law systems whose intellectual framework comes from judge-made decisional law
which gives precedential authority to prior court decisions on the principle that it
is unfair to treat similar facts differently on different occasions (doctrine of
judicial precedent)
Civil law (atau civilian law) adalah sebuah sistem hukum yang berasal dari
Eropa Barat, yang dibentuk dalam kerangka berpikir hukum Romawi,
dan yang ciri utamanya ialah bahwa prinsip pokoknya dikodifikasi
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dalam suatu sistem rujukan yang menjadi dasar utama hukum. Istilah
civil law ini dapat dikontraskan dengan sistem common law di mana
kerangka berpikirnya berasal dari hukum yang dibuat oleh hakim yang
memberikan otoritas preseden atas keputusan pengadilan sebelumnya
dengan prinsip bahwa tidak adil untuk menerapkan fakta yang serupa
secara berlainan dalam waktu yang berbeda (doktrin keputusan hukum
atas dasar preseden).
Force Majeure
Force mejeure is a common clause in contracts that essentially frees both parties
from liability or obligation when an extraordinary event or circumstance beyond
the control of the parties, such as a war, strike, riot, crime, or an event described
by the legal term act of God (such as hurricane, flooding, earthquake, volcanic
eruption, etc.), prevents one or both parties from fulfilling their obligations under
the contract. In practice, most force majeure clauses do not excuse a party's nonperformance entirely, but only suspends it for the duration of the force majeure.
Force majeure (keadaan kahar) adalah suatu kausul dalam kontrak yang
pada dasarnya membebaskan kedua belah pihak dari kewajiban
membayar atau kewajiban lain ketika suatu kejadian luar biasa atau
keadaan di luar kendali para pihak, seperti perang, aksi mogok,
kerusuhan, kejahatan, atau suatu kejadian yang disebut dalam istilah
hukum sebagai tindakan Tuhan (Act of God) seperti badai, banjir, gempa
bumi, letusan gunung berapi, dan lain-lain, yang mencegah satu atau
kedua pihak dari memenuhi kewajiban-kewajiban mereka atas dasar
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kontrak itu. Dalam praktik, pada umumnya klausul force majeure tidak
membebaskan suatu pihak atas tidak dilaksanakannya kewajiban sesuai
kontrak secara keseluruhan, namun hanya untuk sementara menunda
pelaksanaan kewajiban itu selama adanya force majeure.
and order exist for the purpose of establishing justice and when they
“ Law
fail in this purpose they become the dangerously structured dams that
block the flow of social progress.
”
- Martin Luther King, Jr.-
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TENTANG PENULIS
Damos Dumoli Agusman, SH., MA,
Lulusan dari Fakultas Hukum Universitas Padjadjaran Bandung tahun
1987. Penulis menempuh pendidikan lanjutan di University of Hull,
Inggris dan memperoleh gelar Master of Arts di bidang Hukum
Internasional dan Politik pada tahun 1991. Penulis pernah mengikuti
program hukum internasional pada The Hague Academy of International
Law, Den Haag, Belanda. Penulis pernah menjabat sebagai Direktur
Perjanjian Ekonomi dan Sosial Budaya pada Kementerian Luar Negeri
tahun 2006-2010. Saat ini penulis bertugas sebagai Konsul Jenderal RI di
Frankfurt.
Adrianus Adityo Vito Ramon, SH., LL.M (Adv)
Kepala Seksi Hukum Udara, Subdit Perjanjian Kewilayahan, Direktorat
Perjanjian Politik, Keamanan dan Kewilayahan, Kemlu. Lulus dari
Fakultas Hukum Universitas Indonesia dengan program kekhususan
Hukum Internasional pada tahun 2007 serta Master of Laws (Advanced)
dari T. C. Beirne School of Law, the University of Queensland pada tahun
2012. Penulis memasuki Kementerian Luar Negeri pada tahun 2008 dan
mengikuti Sekolah Dinas Luar Negeri (Sekdilu) Angkatan XXXIII.
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Frassminggi Kamasa
Frassminggi Kamasa menyelesaikan S1 Studi Rusia di Universitas
Indonesia, BSc Business Administration di University of the People dan S2
Hubungan Internasional di Victoria University of Wellington, New Zealand.
Pernah mengikuti kursus Ekonomi-Politik Internasional di Yonsei
University. Saat ini bertugas di Direktorat Eropa Timur dan Tengah,
Direktorat Jenderal Amerika dan Eropa. Penulis memasuki Kementerian
Luar Negeri pada tahun 2009 dan mengikuti Sekolah Dinas Luar Negeri
(Sekdilu) Angkatan XXXIV.
Nenda Inasa Fadhilah, SH., LL.M
Staf Fungsional Diplomat Sekretariat Direktorat Jenderal Hukum dan
Perjanjian Internasional. Memiliki minat utama pada isu-isu Hukum
Internasional Publik dan Hukum Investasi Internasional. Lulus dari
Fakultas
Hukum
Universitas
Pelita
Harapan
dengan
program
kekhususan Hukum Internasional pada tahun 2009 serta Master of Laws
(International Legal Studies) dari Georgetown University Law Center di
Washington, DC pada tahun 2013. Penulis memasuki Kementerian Luar
Negeri pada tahun 2010 dan mengikuti Sekolah Dinas Luar Negeri
(Sekdilu) Angkatan XXXV.
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Jurnal Hukum dan Perjanjian Internasional
OPINIO JURIS
Jurnal Opinio Juris menerima tulisan dengan tema hukum internasional,
perjanjian internasional, diplomasi, hubungan internasional, dan isu-isu
dalam negeri yang memiliki dimensi hukum dan perjanjian internasional.
Ketentuan Penulisan:
1. Panjang tulisan 10—20 halaman kertas A4 (termasuk abstraksi, isi,
catatan kaki, dan daftar pustaka), format MS Word, spasi satu setengah,
font Times New Roman ukuran 11. Untuk catatan kaki, spasi satu dan
font Times New Roman ukuran 10;
2. Tulisan dapat dibuat dalam bahasa Indonesia atau bahasa Inggris;
3. Setiap naskah harus disertai abstraksi maksimal 1 halaman A4. Untuk
tulisan dalam bahasa Indonesia, abstraksi dibuat dalam bahasa Inggris
dan untuk tulisan dalam bahasa Inggris, abstraksi dibuat dalam bahasa
Indonesia. Jumlah kata abstraksi sekitar 100 kata.
4. Rujukan dibuat dalam bentuk catatan kaki (footnote);
5. Tulisan harus asli dari penulis, belum pernah diterbitkan, dan tidak
sedang dikirimkan ke penerbit lain;
6. Untuk setiap naskah yang masuk, redaksi berhak mengedit dengan tidak
mengubah maksud dan isi tulisan;
7. Apabila diperlukan, redaksi akan memberikan masukan dan
rekomendasi kepada penulis tentang tulisan yang dikirim;
8. Setiap naskah yang dikirim harus disertai daftar riwayat hidup singkat
penulis (curriculum vitae) yang setidak-tidaknya terdiri dari pekerjaan,
pendidikan, alamat, dan nomor telepon yang bisa dihubungi;
9. Setiap naskah yang disetujui untuk diterbitkan akan mendapatkan
kompensasi finansial;
10. File naskah beserta kelengkapan lainnya dapat dikirim ke email Redaksi.
Sekretariat Direktorat Jenderal Hukum dan Perjanjian Interansional
Kementerian Luar Negeri
Jalan Taman Pejambon No. 6 Jakarta Pusat
Telp: +62 21 3846633 Fax: +62 21 3858044
Email: opiniojuris@kemlu.go.id
http://pustakahpi.kemlu.go.id/
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