Pub Date : 2021-06-25DOI: 10.17304/IJIL.VOL8.1.254
Yvonne Wong
Odious sovereign contracts inhibit developing country growth. They cause money and resources to be improperly transferred from one country to an undeserving one. Think tanks and civil society actors have long suggested that Indonesia is plagued by a sizeable odious sovereign contract account. Policy makers and scholars continue to grapple with how the odious debts doctrine may operate in law to curb this important problem. Taking into account the lack of transparency in an odious contract setting, this paper proposes a new approach premised on principles of transparency, accountability and citizen participation in public contracts. In design, it proposes the following: 1) the creation of ex-ante obligations and a public website on which financiers can disclose the key terms of their contractual arrangements with a sovereign government. This website enables a financier to signal the nature of their engagement with a sovereign counterpart; 2) the creation of an ex-post tribunal, in which private citizens have standing, to adjudicate the odiousness of a disputed sovereign contract. In the tribunal's deliberations, disclosure by a financier and compliance with ex-ante obligations weighs in favour of a presumption of legitimate contracting, whereas non-disclosure lends itself to a presumption of odiousness. This new approach has the right incentives for participation. It will revolutionize the currency of International law and International institutions, by giving the public a mechanism to eke out odiousness in transnational sovereign dealings. It can have important implications for Indonesia and more generally, the future of transnational trade and finance.
{"title":"Odious Debts: Issues in Law and Politics","authors":"Yvonne Wong","doi":"10.17304/IJIL.VOL8.1.254","DOIUrl":"https://doi.org/10.17304/IJIL.VOL8.1.254","url":null,"abstract":"Odious sovereign contracts inhibit developing country growth. They cause\u0000money and resources to be improperly transferred from one country to an\u0000undeserving one. Think tanks and civil society actors have long suggested\u0000that Indonesia is plagued by a sizeable odious sovereign contract account. Policy makers and scholars continue to grapple with how the odious debts doctrine may operate in law to curb this important problem. Taking into account the lack of transparency in an odious contract setting, this paper proposes a new approach premised on principles of transparency, accountability and citizen participation in public contracts. In design, it proposes the following: 1) the creation of ex-ante obligations and a public website on which financiers can disclose the key terms of their contractual arrangements with a sovereign government. This website enables a financier to signal the nature of their engagement with a sovereign counterpart; 2) the creation of an ex-post tribunal, in which private citizens have standing, to adjudicate the odiousness of a disputed sovereign contract. In the tribunal's deliberations, disclosure by a financier and compliance with ex-ante obligations weighs in favour of a presumption of legitimate contracting, whereas non-disclosure lends itself to a presumption of odiousness. This new approach has the right incentives for participation. It will revolutionize the currency of International law and International institutions, by giving the public a mechanism to eke out odiousness in transnational sovereign dealings. It can have important implications for Indonesia and more generally, the future of transnational trade and finance.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84465284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/IJIL.VOL8.1.250
E. Ruozzi
The paper deals with the evolution of the principle of international environmental law prohibiting the use of the territory of a State for activities which may damage the territory of another State. This principle started to develop in relation to strictly trans-boundary situations as a sort of corollary of the well-established principle of sovereignty of States over their territory. In the last decades, international law has been increasingly faced to contexts in which pollution concerns resources over which States have no jurisdiction, such as the atmosphere. Therefore the question arises as to whether these elements - as evidence of practice and opinion juris – form the basis of a customary duty to preserve shared resources or, vice versa, if the legal problems inevitably associated with the protection of res communes omnium prevent the birth of a customary principle. A further evolution of the principle might consist in the duty not to pollute the environment in absolute terms, thus implying the prohibition, for the State, to damage its own territory. This formulation would, contrarily to what observed with respect to the first version of the principle, contradict the dogma of national sovereignty over population and territory; still, the existence of this evolution is supported by different elements. In the first place, the existence of international instruments protecting certain resources independently from their location. Secondly, the growing presence of a human right to a decent environment in legal instruments pertaining to different subsystems of international law. The jurisprudence of international tribunals confirms this tendency, therefore suggesting the idea of the protection of the environment per se is becoming one of the aims pursued by the international community.
{"title":"The Obligation Not to Pollute: From Corollary of State Sovereignty to The Right to A Decent Environment","authors":"E. Ruozzi","doi":"10.17304/IJIL.VOL8.1.250","DOIUrl":"https://doi.org/10.17304/IJIL.VOL8.1.250","url":null,"abstract":"The paper deals with the evolution of the principle of international \u0000environmental law prohibiting the use of the territory of a State for activities which may damage the territory of another State. This principle started to develop in relation to strictly trans-boundary situations as a sort of corollary of the well-established principle of sovereignty of States over their territory. \u0000In the last decades, international law has been increasingly faced to contexts in which pollution concerns resources over which States have no jurisdiction, such as the atmosphere. Therefore the question arises as to whether these elements - as evidence of practice and opinion juris – form the basis of a customary duty to preserve shared resources or, vice versa, if the legal problems inevitably associated with the protection of res communes omnium prevent the birth of a customary principle. A further evolution of the principle might consist in the duty not to pollute the environment in absolute terms, thus implying the prohibition, for the State, to damage its own territory. \u0000This formulation would, contrarily to what observed with respect to the first version of the principle, contradict the dogma of national sovereignty over population and territory; still, the existence of this evolution is supported by different elements. In the first place, the existence of international instruments protecting certain resources independently from their location. Secondly, the growing presence of a human right to a decent environment in legal instruments pertaining to different subsystems of international law. \u0000The jurisprudence of international tribunals confirms this tendency, therefore suggesting the idea of the protection of the environment per se is becoming one of the aims pursued by the international community.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"46 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84980231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/ijil.vol8.1.249
H. P. Abdurrasyid
The article provides a brief background on the development of air and space law from the historical perspective. It concludes that the scientific discipline of air law can be dissected from several elements, namely geographical elements, temporal elements, personal elements, material elements, and functional elements. With regard to space law, the article provides its scientific development and its ramification to other disciplines, most importantly telecommunication law.
{"title":"Growth and Development of Air and Space Law","authors":"H. P. Abdurrasyid","doi":"10.17304/ijil.vol8.1.249","DOIUrl":"https://doi.org/10.17304/ijil.vol8.1.249","url":null,"abstract":"The article provides a brief background on the development of air and space \u0000law from the historical perspective. It concludes that the scientific discipline \u0000of air law can be dissected from several elements, namely geographical \u0000elements, temporal elements, personal elements, material elements, and \u0000functional elements. With regard to space law, the article provides its scientific development and its ramification to other disciplines, most importantly telecommunication law.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90091221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/IJIL.VOL8.1.248
D.E.M. Kromwijk and Professor W.J. Oostwouder
The special committee of inquiry into the financial crisis (Tijdelijke commissie onderzoek financieel stelsel), better known as the De Wit Committee was in charge of investigating for the second chamber of the Dutch Parliament how the credit crisis had originated and how a future crisis could be prevented. In its report, the Committee paid special attention to the influence of remuneration on the crisis. In its final report, three of the twenty five recommendations concerned remuneration. Not only in the Netherlands was there attention for the incentives of remuneration and their role in the credit crisis, but also in the rest of the world. There are three different theories which try to explain the existence of variable remuneration: the agency theory, the market theory and the corporate governance theory. This article describes the European and Dutch rules on variable remuneration of executive board members and where possible also of employee remuneration. However, these rules are not always clear-cut. In this article, discrepancies between the European and the Dutch rules will be discussed. In this article, variable remuneration will thus be considered as a tool to solve the agency problem. The total remuneration (including the variable remuneration) can be seen as an instrument to attract and bind board members.
{"title":"Do the European and Dutch rules on variable remuneration of financial institutions match and can remuneration be regulated on a European level?","authors":"D.E.M. Kromwijk and Professor W.J. Oostwouder","doi":"10.17304/IJIL.VOL8.1.248","DOIUrl":"https://doi.org/10.17304/IJIL.VOL8.1.248","url":null,"abstract":"The special committee of inquiry into the financial crisis (Tijdelijke commissie onderzoek financieel stelsel), better known as the De Wit Committee was in charge of investigating for the second chamber of the Dutch Parliament how the credit crisis had originated and how a future crisis could be prevented. In its report, the Committee paid special attention to the influence of remuneration on the crisis. In its final report, three of the twenty five recommendations concerned remuneration. Not only in the Netherlands was there attention for the incentives of remuneration and their role in the credit crisis, but also in the rest of the world. There are three different theories which try to explain the existence of variable remuneration: the agency theory, the market theory and the corporate governance theory. This article describes the European and Dutch rules on variable remuneration of executive board members and where possible also of employee remuneration. \u0000However, these rules are not always clear-cut. In this article, discrepancies between the European and the Dutch rules will be discussed. In this article, variable remuneration will thus be considered as a tool to solve the agency problem. The total remuneration (including the variable remuneration) can be seen as an instrument to attract and bind board members.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79990841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/IJIL.VOL8.1.247
M. Indra
International human rights laws in the forms of United Nations Statues, International Conventions, Universal Declaration on Human Rights and other international law instruments have highlighted a guarantee of humanitarian protection which echoing human rights components without exception inborn to human being in particular refugees as the subject of international law. In managing minimum standard of rights and duties of a refugee and the judicial status of refugee under the protection of UNHCR and IOM humanitarian efforts within Indonesian territorial jurisdiction it is required the all of refugees and asylum seeker abide to national regulation and legislation formats while they are residing temporarily in Indonesia. Until currently, the policies of Indonesian Government in dealing with and handling or doing management efforts for the arrival of refugees and asylum seekers in Indonesia, have not emerged yet. Considering the challenge on how to deal with asylum seekers and refugees be categorized as irregular immigrants, this issue needs mitigation effort by formulating the Directorate General of Immigration’s policy to be more focus and comprehensive to cope with adverse negative impacts of the existence of illegal immigrants undergoing to the matters of ideology, politics, economy, social cultural extend, national security and immigration compliance.
{"title":"The Echoes of International Human Rights Law: In Perspective of Law Enforcement Dimension to Deal with Irregular Immigrants in Indonesia","authors":"M. Indra","doi":"10.17304/IJIL.VOL8.1.247","DOIUrl":"https://doi.org/10.17304/IJIL.VOL8.1.247","url":null,"abstract":"International human rights laws in the forms of United Nations Statues, \u0000International Conventions, Universal Declaration on Human Rights and \u0000other international law instruments have highlighted a guarantee of \u0000humanitarian protection which echoing human rights components without \u0000exception inborn to human being in particular refugees as the subject of \u0000international law. In managing minimum standard of rights and duties of a refugee and the judicial status of refugee under the protection of UNHCR and IOM humanitarian efforts within Indonesian territorial jurisdiction it is required the all of refugees and asylum seeker abide to national regulation and legislation formats while they are residing temporarily in Indonesia. \u0000Until currently, the policies of Indonesian Government in dealing with and \u0000handling or doing management efforts for the arrival of refugees and asylum seekers in Indonesia, have not emerged yet. Considering the challenge on how to deal with asylum seekers and refugees be categorized as irregular immigrants, this issue needs mitigation effort by formulating the Directorate General of Immigration’s policy to be more focus and comprehensive to cope with adverse negative impacts of the existence of illegal immigrants undergoing to the matters of ideology, politics, economy, social cultural extend, national security and immigration compliance.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"57 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77547683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/ijil.vol8.1.246
E. S. Wiradipradja
The concept of open skies policy is an international policy concept which aims to liberalize of rules and regulations on international commercial aviation industry. For developed countries, by allowing air carriers unlimited market access to its partners’ markets and the right to fly to all intermediate and beyond points, open skies agreements provide maximum operational flexibility for airline alliances. They may have the best opportunities, as they will be able and in the best position to offer the best product to the better part of the air traffic market. On the contrary, for developing countries, open skies policy may cause more harm to the interests of airlines than bring economic gains to the countries. Further, it will lead to a domination of the international air transportation market by the biggest and most developed countries that finally it will return the situation to monopolistic system. To take care of emerging needs, it would be more appropriate to periodically renegotiate the existing bilateral agreements.
{"title":"Open Skies Policy: The Developing Countries Point of View","authors":"E. S. Wiradipradja","doi":"10.17304/ijil.vol8.1.246","DOIUrl":"https://doi.org/10.17304/ijil.vol8.1.246","url":null,"abstract":"The concept of open skies policy is an international policy concept which \u0000aims to liberalize of rules and regulations on international commercial \u0000aviation industry. For developed countries, by allowing air carriers unlimited market access to its partners’ markets and the right to fly to all intermediate and beyond points, open skies agreements provide maximum operational flexibility for airline alliances. They may have the best opportunities, as they will be able and in the best position to offer the best product to the better part of the air traffic market. On the contrary, for developing countries, open skies policy may cause more harm to the interests of airlines than bring economic gains to the countries. Further, it will lead to a domination of the international air transportation market by the biggest and most developed countries that finally it will return the situation to monopolistic system. To take care of emerging needs, it would be more appropriate to periodically renegotiate the existing bilateral agreements.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79095958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-25DOI: 10.17304/IJIL.VOL8.1.252
T. H. Purwaka
Indonesia has experienced four times paradigm shift in the implementation of the law of the sea since it declared its archipelagic state principle in 1957 through the 1957 Djuanda declaration up to now. The shifting of paradigms can be viewed as a progressive development on the implementation of the law of the sea in Indonesia. The first paradigm was ocean space paradigm which was clearly shown in the 1957 Djuanda declaration and along the way of the diplomacy efforts of Indonesia in the first (1958), the second (1960) and the third (1982) UNCLOS. The first paradigm showed how Indonesian people viewed ocean space of Indonesian archipelago as an integral part of national territory of Indonesia. The ocean space of Indonesian archipelago, however, should be filled with development activities as the implementation of the law of the sea. This has raised ocean development paradigm in 1985 as the second paradigm. Problems and constraints of ocean development faced by government of Indonesia which consists of central government, provincial government, regency government and municipal government have led to the maritime continent paradigm as the third paradigm in 1990s. The third paradigm viewed the ocean and land space of Indonesian archipelago as a continent. By thinking so, maritime jurisdictional problems raised by the involvement of central, provincial, regency and municipal governments in Indonesia’s ocean development will be able to be solved. As a matter of fact, the appearance of the third paradigm has complicated efforts of government in socializing the implementation of the law of the sea to all government levels and to Indonesian people. For this reason, government of Indonesia in the year of 2000 formulated national ocean policy. This policy combined ocean space, ocean development and maritime continent paradigms which can be viewed as the fourth paradigm. The fourth paradigm then can be named as ocean policy paradigm.
{"title":"Paradigm Shift in the Implementation of the Law of the Sea in Indonesia","authors":"T. H. Purwaka","doi":"10.17304/IJIL.VOL8.1.252","DOIUrl":"https://doi.org/10.17304/IJIL.VOL8.1.252","url":null,"abstract":"Indonesia has experienced four times paradigm shift in the implementation of the law of the sea since it declared its archipelagic state principle in 1957 through the 1957 Djuanda declaration up to now. The shifting of paradigms can be viewed as a progressive development on the implementation of the law of the sea in Indonesia. The first paradigm was ocean space paradigm which was clearly shown in the 1957 Djuanda declaration and along the way of the diplomacy efforts of Indonesia in the first (1958), the second (1960) and the third (1982) UNCLOS. The first paradigm showed how Indonesian people viewed ocean space of Indonesian archipelago as an integral part of national territory of Indonesia. The ocean space of Indonesian archipelago, however, should be filled with development activities as the implementation of the law of the sea. This has raised ocean development paradigm in 1985 as the second paradigm. Problems and constraints of ocean development faced by government of Indonesia which consists of central government, provincial government, regency government and municipal government have led to the maritime continent paradigm as the third paradigm in 1990s. The third paradigm viewed the ocean and land space of Indonesian archipelago as a continent. By thinking so, maritime jurisdictional problems raised by the involvement of central, provincial, regency and municipal governments in Indonesia’s ocean development will be able to be solved. As a matter of fact, the appearance of the third paradigm has complicated efforts of government in socializing the implementation of the law of the sea to all government levels and to Indonesian people. For this reason, government of Indonesia in the year of 2000 formulated national ocean policy. This policy combined ocean space, ocean development and maritime continent paradigms which can be viewed as the fourth paradigm. The fourth paradigm then can be named as ocean policy paradigm.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88256756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-30DOI: 10.17304/IJIL.VOL18.3.813
Huaiyin Zhang
The Supreme People’s Court (SPC) case of ‘乔丹’, brought by Michael Jordan against Qiaodan Sports, is a landmark case over the protection of the right to the personal name in the People’s Republic of China (PRC). In the retrial proceeding, the SPC gave eight exhaustive explanations to the disputed questions and eventually reversed the lower court’s decision. After studying the judgment, this article finds that a famous foreign name can be protected by Chinese Trademark law only when it satisfies three conditions: First, the specified name enjoys a certain popularity in China and is well-known to the concerned public; second, the concerned public uses the specified name to refer to the original person of that name; and third, there has already been a stable match between the specific name and the original person of that name. Although China mainly adopts the “right to name” for the legal protection of celebrity names, the right to name is a kind of personal right, difficult to protect economic benefits derived from celebrities’ names fully. Comparing Germany’s extended protection model of personality rights and the United States model of “right of publicity,” this article suggested that China tries to introduce the United States model to protect the celebrity name’s right.
{"title":"The Protection of Celebrity Name in China: After the ‘乔丹’ Case by the SPC of China","authors":"Huaiyin Zhang","doi":"10.17304/IJIL.VOL18.3.813","DOIUrl":"https://doi.org/10.17304/IJIL.VOL18.3.813","url":null,"abstract":"The Supreme People’s Court (SPC) case of ‘乔丹’, brought by Michael Jordan against Qiaodan Sports, is a landmark case over the protection of the right to the personal name in the People’s Republic of China (PRC). In the retrial proceeding, the SPC gave eight exhaustive explanations to the disputed questions and eventually reversed the lower court’s decision. After studying the judgment, this article finds that a famous foreign name can be protected by Chinese Trademark law only when it satisfies three conditions: First, the specified name enjoys a certain popularity in China and is well-known to the concerned public; second, the concerned public uses the specified name to refer to the original person of that name; and third, there has already been a stable match between the specific name and the original person of that name. Although China mainly adopts the “right to name” for the legal protection of celebrity names, the right to name is a kind of personal right, difficult to protect economic benefits derived from celebrities’ names fully. Comparing Germany’s extended protection model of personality rights and the United States model of “right of publicity,” this article suggested that China tries to introduce the United States model to protect the celebrity name’s right.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"308 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74387403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-30DOI: 10.17304/IJIL.VOL18.3.816
Habraham Sonda, Frieda Shifotoka
For years intellectual property (IP) has been an area that has been neglected in its protection and promotion in comparison to other types of the property despite its uniqueness. There is more neglect in industrial designs, specifically from innovators from developing countries, because of the lack of assistance to innovators or government prioritizing areas concerned with the public interest. IP does not only benefit its creators. However, it has contributed to the economies of many countries. Hence the need to have effective legal systems that recognize IP and have remedies and enforcement mechanisms. When there are mechanisms in place for protection, it gives innovators more confidence and helps them develop new technology. Both Namibia and Burkina Faso are members of the World Intellectual Property Organization and the World Trade Organization. They are obliged to apply the minimum in the Trade-Related Aspects of Intellectual Property Rights agreement and related WIPO treaties. A comparative study was made on three-dimensional work to identify the strengths and shortcomings of the applicable national laws. The findings show that laws in Burkina Faso are clear and specifically provide for the protection of three-dimensional in terms of all IPRs, while Namibian laws, apart from copyright law, do not expressly provide for three-dimensional. However, the provisions are broad enough to protect three-dimensional. It is recommended that the legislature revises current laws to be clear and adequate for protecting three-dimensional.
{"title":"THE PROTECTION OF THREE-DIMENSIONAL WORKS AS A MEANS OF PROMOTING INNOVATION: A COMPARATIVE BASIS OF NAMIBIA AND BURKINA FASO","authors":"Habraham Sonda, Frieda Shifotoka","doi":"10.17304/IJIL.VOL18.3.816","DOIUrl":"https://doi.org/10.17304/IJIL.VOL18.3.816","url":null,"abstract":"For years intellectual property (IP) has been an area that has been neglected in its protection and promotion in comparison to other types of the property despite its uniqueness. There is more neglect in industrial designs, specifically from innovators from developing countries, because of the lack of assistance to innovators or government prioritizing areas concerned with the public interest. IP does not only benefit its creators. However, it has contributed to the economies of many countries. Hence the need to have effective legal systems that recognize IP and have remedies and enforcement mechanisms. When there are mechanisms in place for protection, it gives innovators more confidence and helps them develop new technology. Both Namibia and Burkina Faso are members of the World Intellectual Property Organization and the World Trade Organization. They are obliged to apply the minimum in the Trade-Related Aspects of Intellectual Property Rights agreement and related WIPO treaties. A comparative study was made on three-dimensional work to identify the strengths and shortcomings of the applicable national laws. The findings show that laws in Burkina Faso are clear and specifically provide for the protection of three-dimensional in terms of all IPRs, while Namibian laws, apart from copyright law, do not expressly provide for three-dimensional. However, the provisions are broad enough to protect three-dimensional. It is recommended that the legislature revises current laws to be clear and adequate for protecting three-dimensional.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88265696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-30DOI: 10.17304/IJIL.VOL18.3.815
Y. Yulia
The protection of traditional knowledge through patents is still an interesting issue on an international level. Indonesia revised Patent Law in 2016 (Law Number 13 of 2016 concerning Patent or Indonesian Patent Law). This Law has confirmed that patent is an exclusive right that the country gives for the inventor to the invention in technology, for a certain amount of time, to implement itself or give other parties to implement it. The patent can be submitted if required terms of the patent application, there are novelty, inventive steps, and industrially applicable. That provision cannot be fulfilled by traditional knowledge, where traditional knowledge is the knowledge passed down from generation to generation. This study is a doctrinal study that will analyze Article 26 of the Indonesian Patent Law. The study found that Indonesia has required the mention of sources of origin in traditional knowledge under Indonesian Patent Law. This article provides opportunities for the protection of traditional knowledge. It is also a challenge for communities to obtain protection and benefit-sharing from traditional knowledge that the original source has stated when filing a patent.
{"title":"THE PROTECTION OF TRADITIONAL KNOWLEDGE UNDER INDONESIAN PATENT LAW: BETWEEN OPPORTUNITIES AND CHALLENGES","authors":"Y. Yulia","doi":"10.17304/IJIL.VOL18.3.815","DOIUrl":"https://doi.org/10.17304/IJIL.VOL18.3.815","url":null,"abstract":"The protection of traditional knowledge through patents is still an interesting issue on an international level. Indonesia revised Patent Law in 2016 (Law Number 13 of 2016 concerning Patent or Indonesian Patent Law). This Law has confirmed that patent is an exclusive right that the country gives for the inventor to the invention in technology, for a certain amount of time, to implement itself or give other parties to implement it. The patent can be submitted if required terms of the patent application, there are novelty, inventive steps, and industrially applicable. That provision cannot be fulfilled by traditional knowledge, where traditional knowledge is the knowledge passed down from generation to generation. This study is a doctrinal study that will analyze Article 26 of the Indonesian Patent Law. The study found that Indonesia has required the mention of sources of origin in traditional knowledge under Indonesian Patent Law. This article provides opportunities for the protection of traditional knowledge. It is also a challenge for communities to obtain protection and benefit-sharing from traditional knowledge that the original source has stated when filing a patent.","PeriodicalId":36998,"journal":{"name":"Indonesian Journal of International and Comparative Law","volume":"74 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77181462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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