Showing posts with label ocean. Show all posts
Showing posts with label ocean. Show all posts
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Diplomatic protection in freedom flotilla incident

Tuesday, June 1, 2010


I interviewed an Indonesian government official about the Flotilla incident. As you might have been aware, around 12 Indonesian journalists and volunteers are on board the vessels, which makes this issue even more emotive for the Indonesian.

The key question is what diplomatic avenues are available to protect our citizens there and as a follow-up to that, what mechanisms of redress is available under International Law. It is unfortunate that he refuse his name to be mentioned. The analysis he provides is very interesting. Enjoy the interview.


Why is there no "international law" when it comes to Israel?

Not necessarily the case. There are many areas in international law that must be followed by Israel. Take for example in area of diplomatic relations. The fact that Israel has embassies worldwide and official mission in the UN shows that Israel bound to international law. Failure to follow international law thereof will bring consequences.

The latest consequences or "slap in the face" for Israel in diplomatic relations was when UK and Australia expelled or "persona non grata" Israel diplomats from their embassies in relation to passport frauds done by Mossad in the recent Hamas' leader assassination.

In the context of freedom flotilla, one of the main issues of international law is the legality of unilateral interdiction in high seas, including among others, compensation. 

Can Indonesian government provide diplomatic protection to its citizens on board Flotilla -- notwithstanding that there is no preexisting diplomatic ties between the two nations?

Indonesian Government can provide protection for its nationals aboard freedom flotilla. As a matter of fact, it is required by indonesian law and international law acknowledges the existence of  such obligation.

Is it possible to ask for reparation for injuries?

Of course, in the context of Israel, the United Nations, in particular via the UNGA or UNSC may serve as a media to ask for reparation of injuries. What needs to be underlined though, both UNGA and UNSC are not law tribunals rather they are political bodies.   


Is there any way to charge the perpetrators under war-crime?

Charging is less difficult compared to find the means and enforcement to do so. Once there was an attempt to charge former US President Bush for war crimes in Iraq, but because neither the means and enforcement are sufficient, the attempt was useless.

Netanyahu claimed that it was an act of self-defense. What is your comment?

This incident reminds me of a self defence character policy announced by the US in 2004 called Proliferation Security Initiative or PSI, which basically allows interdiction of vessels on high seas assumed to carry WMD for terrorists.

In this case, both PSI and Israel's interdiction share similar motive; threat of terrorists attack (Netanyahu statement in BBC in responding to the interdiction). A clear difference between the two, however, is in the methods: the PSI requires a consent from the vessel's flag states before attempting to board the vessel to begin with whilst the Israelis clearly does not.

Surely, there is a valid reason why International law governs strict requirements when it comes to self defence and use of force, that is to maintain peace, not otherwise. 


How compelling (or binding -- as lawyer's often put it) is the law on interdiction under international law? Boarding a foreign vessel on an international water is a clear violation of international law, no? What can Turkey does to redress this internationally wrongful act of the Israeli state?

International law governs interdiction of ships both by customs and treaty laws. Israel is bound to follow; it if not by treaty law then by ways of customs. Because vessel is an extension of a state's territory being the flag state or the owner state, it can be considered as an act of war to board a foreign vessel without valid justification and procedures. Prima facie, such act violates that particular state sovereignty. Article 2 (4) of the UN Charter is crystal clear when it comes to territorial integrity, let alone ICJ decisions.

Bilaterally, Turkey can seek compensation from Israel via its diplomatic channels. Multilaterally Turkey or any other nations for that matter that have been effected by this incident may ask UNGA to exercise Article 96 (b) of the UN Charter that is to seek ICJ's advisory opinion on the legality of Israel's interdiction on freedom flotilla as it did in 2004 on the legal consequences of the construction of a wall in the occupied Palestinian territory, which was decided as contrary to international law.

In a more concrete terms, what can we do provided that no diplomatic relation exist? Can we use the diplomatic arm of a third country to facilitate protection? Can we pursue international enforcement through ICJ, i.e. that states victim collectively demand reparation for its citizens on board Flotilla (that includes Turkey as the ship's flag-state) through ICJ mechanism?

I see several scenarios with regard to protection of Indonesian nationals, among others first, all or one Indonesian nationals are taken as hostages or worst prisoners and second possible compensations. For the first scenario, Indonesia via its permanent representative in the UN can demand a release or deportation of its nationals from Israel or use a third state having diplomatic relations to Israel to do so. The second scenario, however, is rather difficult because the Israel has to be found responsible first.

Enforcement through ICJ is unlikely to result in actual reparation. Unless Israel accepts ICJ's compulsory jurisdiction for contentious case, the only available means in ICJ is by advisory opinion under Article 96 (b) as I have mentioned earlier.

As part of procedures in advisory opinion, Indonesia can submit its official views to the ICJ on the case as it did in the advisory opinion case on legal consequences of the construction of a wall in the occupied Palestinian territory.




And, a gentle reminder:
An online discussion on consumers rights in the Indonesian water services sector will be held on Wednesday, 2nd of June 2010 at 19.00 (GMT+0) in here. More detail.

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HP 3 Rights, What Strategy for NGOs?

Tuesday, May 19, 2009

Following my Articles on HP-3 in Jakarta Post ("The need for Clarification on HP-3 Rights" and previously "Coastal Management Law Review?") it is relevant to ask question on which course of (legal) action would our Civil Societies colleagues take, in response to the enactment of Coastal Law.

I can think of three possible actions by Civil Societies:
  1. Judicial Review. Most activist would blame the Law for its interest in privatizing coastal areas. As such, they would be inclined to invalidate Law 27/2007. But what reasons can be used to submit the JR? Roughly speaking, I would say that any attempt to invalidate Law 27/2007 will have a very minimal chance of success. I do not see any provision under the Law which diametrically contradicts the Constitution. True, that the implementation of the Law may deprive certain members of the societies (such as the Adat Community) from their Constitutional rights, but in general, the black letters of Law 27 guarantees the preservation of existing traditional rights. Thus, if JR is to be opted, the most convincing hole would be to contradict the ill-defined HP-3 rights against "legal certainty" provision of the Constitution. I am not suggesting that this measure would be effective as property rights needs not to to be fully defined (a 'complete' property rights is impossible anyway), but there is a chance of success since "legal certainty" is weighed considerably by the Court. In any case, a move in reviewing Law 27 must not be aimed at winning the case completely (which result in the complete invalidation of the law) but simply in getting partial invalidation of harmful articles or, if not possible at all, in gaining the Court's recommendation for safeguarding its implementing regulations.
  2. Legislative Review. If one thinks that the Law is insufficient or defective invalidation may not be the option. The Court's function is in ensuring that provisions of Laws are Consistent with the Constitution. So, if there are provisions of laws which is consistent with the Constitution but is nevertheless defective, the Court may choose to reject the petition to invalidate and recommends it for a legislative review. However, when a Law is recommended for a legislative review by the Court, it does not necessarily follows that the parliament will take the Court's suggestion. There are so many Bills that the Parliament needs to enact in any given year and there are political (as well as administrative) costs for rediscussing an already-enacted bill.
  3. Implementing Regulation and Its Reviews. Law 27 will require plenty of government regulations and regional regulations to be implemented. In terms of technicalities, this measure is the most technically feasible. It is easier to change implementing regulation than annuling a provision of a Law or modifying it through legislative measures. Option #1 involves proceedings at the Constitutional Court and option #2 involves deliberation by parliament members. Option #3 however, only involves the government. It is easier for the government to enact regulations which are friendly to the cause promoted to Civil Societies. But because Option #3 rests on the discretion of the government alone, there is always a chance of capture by business interests. A way of rejecting an enacted government regulation is by conducting an appeal to the Supreme Court. Note however that the appeal for Government Regulation (against a Law) in the Supreme Court would take a very long time, as the Supreme Court has a very high case-load.
From these options, I would suggest Civil Societies to first submit a JR to the Constitutional Court. This must be done with a caveat that it has a minimum chance of success, so the aim of the JR should not be in entirely invalidating the Law but in obtaining partial invalidation and recommendation from the Constitutional Court in safeguarding the Law's implementing regulation.

This move will benefit Civil Societies developing monitoring and stakeholder participation capacity during and after the property rights setting takes place, as institutional set-up for HP-3 (zoning, etc) and its implementation are prone to capture.

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The need for clarification on HP-3 rights

Thursday, May 14, 2009

I published an article in today's Jakarta Post:

Law 27/2007 enables private ownership of coastal zones through a system called HP-3 (which governs the right to commercialize coastal waters). The idea behind this system is to allow the exploitation of the currently neglected, but potentially profitable, 81,000 thousand kilometers of Indonesian coastline and its 12 mile wide territorial sea.

A HP-3 grants ownership to water columns (above the seabed to the water surface) in Indonesian territorial zones. In most cases, the Law stipulates that HP-3s will be granted by local governments. The Law says that the first period of ownership is granted for a period of 20 years but can be extended. As the law does not impose any limitation for extension, it is presumable that HP-3s could be owned perpetually. It is also worth noting that a HP-3 certificate can be used as collateral to secure a loan.

We know from theory that in order to be functional, property rights must fulfill the "3Ds" rule: definability, defensibility and defeasibility. Property rights can only be efficient within these three aspects, and only if transaction costs are low.

With respect to definability, the Law stipulates that a HP-3 covers a three dimensional space from the seabed up to the surface. This would mean that the seabed falls under another system of regulation. There is however, some interface between the seabed and the water column, and this becomes an issue in sea mining operations. If there is an overlap of ownership between the two (the seabed is granted to an oil company and the HP-3 on the surface is granted to an aquaculture company, for example).

A way of preventing this problem is by coordinating the awarding of property rights between the two areas. That is to say, the awarding of any marine mineral resources exploitation license by the central government must be coordinated with local government.

In another scenario, if both a seabed exploitation licenses and a HP-3 for the adjacent surface are owned by the same entity, disputes could occur from one area to another, which could dilute the value of the property of the neighboring HP-3 owner. One way to anticipate this is for the local government to stipulate which area is used for what. Zoning mechanisms must be very solid in order to prevent property rights disputes.

The law also does not define exact rights within a water column. A water column may be an area passed-though by highly migratory species protected under international law, which therefore cannot be harvested, even by HP-3 owners. A way to address this issue is by clarifying the dos and don'ts for HP-3 owners when implementing regulations.

Another significant problem is that marine boundaries constantly change because of natural phenomenon. HP-3 limits could be confused if the baseline used to measure a sea boundary also changes because the sea level rises. I am not certain as to what mechanism could be used to adapt to this problem.

As for defensibility; defending a property rights in the ocean is relatively more difficult than on land. On land, one can install fences in order to defend and mark their property. This is not possible in the sea. Nets can be used, but if used too extensively they could capture protected species. The surface structure could be used, but that should not hinder navigation for vessels passing through the area. And in any case, it is difficult to exclude traditional fishermen from fishing in HP-3 zones, as they may not be equipped with GPS.

HP-3s are interestingly defeasible enough. Defeasible basically means that the property rights can be transferred. In theory, a property right must be defeasible in order to enable exchange, so that a market can develop. The Law does stipulate that HP-3s can be transferred or encumbered with a mortgage. It is not yet clear which government department would be responsible for the registration of the mortgage. As long as the government has not clarified any institution responsible for the mortgage registration, the idea of mortgaging the sea will not be enforceable. Mortgage is an important part of the whole scheme, as it allows banks and other investor to enter and finance the project.

As we can see from the above explanations that property rights in the sea could be very costly in terms of its definability, defensibility and defeasibility. A huge amount of information would be required to define the property rights. Sonar imaging, GIS interpretation or anthropological studies on the existence of traditional fishing rights would expend a huge of amount of cost.

But these things are essential because, without a clear definition of property rights, future disputes may occur. Defending property rights is also difficult and the costs will be borne by the owners. If the cost of defending the property rights is more than the benefit of exploiting it, then it will not be a worthy investment. As for defeasibility, there is a high cost for institutional set-up. An institution will need to be established in order to maintain marine cadastre and administer HP-3 titles and their encumbrances.