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Equity, Prosperity and Dispute Resolution Across Borders
Sovereignty is a word which has been escalated in its use of late by both Australian and Indonesian politicians in a play to domestic audiences in a manner which has caused concern in the community of the other. Australia attached the term "Sovereign Borders" to a project which offended key personnel in the Indonesian community, and sovereignty is a word much relied upon by the current Indonesian president and his ministers and ambassadors.
International law is much misunderstood at the best of times by domestic lawyers, and evidently more misunderstood by domestic politicians below the level of “Statesman”. Many in the community confuse international law with politics or strategy, whereas international lawyers understand it to be real law of the determinative kind. Outside the small community of true international lawyers, many could be forgiven for their misunderstanding, for the same reason that people without access to justice or living in crime-ridden community might become cynical about the reality of the law by which most Australian civil society lives their daily lives. International law can come from treaty between nations, or by custom whereby nations recognise a requirement to behave in a particular way because it is regarded as law. An agreement on exploitation the mineral resources of the Timor Gap, is an example of the first kind of international law, and the recognition of a territorial sea border against incursion by a navy vessel of a foreign country is an example of the second kind.
International law has a long history and has remnants of feudal times. An example which has existed for a long time and continues today is that nations have a sovereign right to protect their citizens abroad. The tension of that doctrine is with the recognition at international law of the entitlement of a country to impose its own laws, provided those laws do not offend fundamental principles of international law , and provided that where a domestic law offends international law the nation will still be liable at international law. An example of the first kind of supremacy of international law is that Nazi German law did not excuse the actions of those hanged for genocide at international law. An example of the second kind is that Australia can pass all the plain tobacco labelling laws it wants, but will still be liable for damages to the tobacco companies if those actions were in breach of Australia's international trade and investment obligations.
There is a common misconception in Australia and many places, perhaps confused with an aspiration, that the law applies equally to all people independent of their national status. This is just wrong as a fact. Foreigners cannot vote in either Indonesia or Australia for example.
However, the discriminations do not always favour the citizen. Sometimes foreigners have rights in a country that citizens do not have in their own country. Often these rights and protections are a result of international law and the rights of a nation to protect the interests of its citizens as a matter of sovereignty. The most well known example is the recognition by domestic law of the international law rights of diplomatic immunity of a nation's ambassadors. When a gunman from the Libyan embassy shot a British policeman in London, he was immune from prosecution for murder - but all hell to pay at international law between the nations. Another common example of a right afforded to a foreigner, but not a citizen is the right to consular representation on arrest. That second example is an example of the sovereign right of a nation to protect its citizens abroad against denial of justice.
There is a core and serious tension at international law developing in the proposed execution by Indonesia of foreign citizens. On the one hand is Indonesia's sovereign right to make its laws and apply them. On the other hand if Indonesia does that in a manner which denies justice to a foreign citizen, then Indonesia will be in serious breach of international law and a serious offence to the sovereignty of the nation of the foreigner. In the proposed execution of Chan and Sukumaran it is not only Indonesia's sovereignty which is at risk, it is Australia's sovereignty threatened.
Denial of justice at international law is well established cause of action. It is not limited to human rights, but forms part of a set of rules of international law which protect against injury to the person and property of aliens on national territory. The right has been expressed in this way by a number of claims tribunals, and a definition helpfully proffered by the NAFTA tribunal in Azinian v United Mexican States in 1999: “A denial of justice could be pleaded if the relevant courts refuse to entertain a suit, if they subject it to undue delay, or if they administer justice in a seriously inadequate way...the clear and malicious misapplication of the law...which overlaps with the notion of “pretence of form” to mask a violation of international law”.
The Australian citizens, Chan and Sukumaran, have legal appeals pending. Their execution prior to the determination of those appeals would be a breach of international law and an infringement of Australian sovereignty. Underlying that is the question, “Why would you do it?”. Suggested answers emerge from a comparison of the treatment of the Australian nationals in this batch of executions and how that treatment has differed from the treatment afforded from the treatment afforded Indonesian nationals and nationals of other countries.
Sukarno’s 1964 protocol for execution requires the process to be conducted simply out of public view and without fanfare by the civil police of the district of the sentencing Court, in this case Denpasar District Police in Bali. That is Indonesian law. Instead, the transportation of the Australian citizens has involved a colossal auto-da-fé rejoining the military into Indonesian civilian justice.
Both the Indonesian President and Australian Prime Minister have close advisors who know international law, even if they don’t.
Hikmahanto Juwana an expert in International Law from the University of Indonesia who was scheduled to join T. Mulya Lubis, the condemned Australians' defence lawyer at a panel discussion on the death penalty hosted last Wednesday at the Jakarta Foreign Correspondent’s Club had also joined Mr Lubis previously on a when former President Susilo Bambang Yudhoyono set up a fact-finding team to review the case implicating two leaders of the Corruption Eradication Commission (KPK) amid mounting public anger across the country about corruption. The current President Jokowi faces similar domestic pressures which are very real and his ability to deal with them effectively is essential to the future of the Indonesian nation.
Juwana was highly offended by Australia’s “Sovereign Borders” boat tow-backs to Indonesia and Indonesian fisherman boat purchase intervention scheme describing it as foreign breach of Indonesian law.
Juwana, also a director of Unilever in Indonesia, was fiercely critical of the clemency process which lead to Schappelle Corby’s early release. Juwana said that former President SBY should have taken into consideration the treatment by the Australian government of Indonesian fisherman caught in that country’s waters. Juwana said ‘clemency is not just about legal jurisdiction, it’s political. By granting clemency to Corby, the government should ask for something political in return from Australia. The government should show the public that they are strong and not bowing to pressure from the Australian government’. “It is time for the President to answer the call, explaining to us why he made that decision. If his explanation is unacceptable, then [the President] could be considered as breaking the law himself.”
In Chan and Sukurmaran’s appeal they are seeking to take the point that it is not enough for the President to make a clemency decision it must be explained. It is a serious legal point in Indonesian law (the clemency process has a statute) and it would be a breach of international law to execute an Australian citizen denying them a right to take the point.
In the face of steadfast assistance and co-operation between Australia’s police forces on drug trafficking and Australia’s natural ally status in assisting Indonesia when Indonesians are on death row the answer to “Why would you do it that way?” may be evidence of the answer to “Why would you do it at all?”
These are not posed as moral, political or cultural questions. These are questions also of international law involving not only respect for Indonesia’s sovereignty, but also respect for Australia’s sovereignty.
International law aside, there are diplomatic ways to deal with these things, involving mutual respect and co-operation as a starting point. Untenable positions are the hardest to get out of. Its not unthinkable, although unlikely, that Australia’s Prime Minister might make a public statement, in bahasa Indonesia which said “Pak Jokowi, tolong! Kita mau jadi tetanga baik dan saling-saling mengerti. Australia tidak mau lihat WNI hukum mati di luar negri, dan juga tidak mau lihat masyrakat Indonesia kenak masalah obat. Kita bisa setuju Australia tetap bantu Indonesia masalah hukum mati dan obat, kelau Pak bisa bantu berhenti system hukuman mati”*
But it was after all Jokowi who said at a Presidential election television debate chaired by and in response to a question from Juwana about military diplomacy around asylum seekers impinging on Indonesia’s sovereignty, “We can bring them to international courts if necessary”.
Australia and Indonesia are permanent neighbours. Families increasingly span the borders. Any non consensual resolution will be long term counterproductive for both parties. That is Australia's strategic negotion problem in looking to international law for formal dispute resolution or enforcement. It remains a valid benchmark in negotiations. Would Indonesia refuse to acknowledge it as such in a diplomatic conversation? Indonesia's "hard edged" international law problem is that it has this issue with the nations of the 60 odd foreigners on death row who do no share Australia's sensitivities to arbitration or enforcement. It is difficult not to be law abiding, if you wish to participate in a community of sovereigns, spruik "sovereignty" and live by that sword.
*"Mr President, I need help here! I have painted myself into a corner. We both want to be good neighbours, with mutual respect and understanding. Australia does not like to see Indonesian maids have their heads cut off in Saudi Arabia or young Indonesian men hung by a rope until dead in Malaysia. Nor do we like to see Indonesia's community afflicted by the scourge of drug addiction. We could agree that Australia would continue to assist Indonesia with both the issue of capital punishment and drugs. Our police were the reason you caught these men who were boys, If you will agree to not use the death penalty system, we can work together."