Konstruksi Pengaturan Penegakan Hukum Terhadap Pencemaran Asap Lintas Batas Pasca ASEAN Agreement on Transboundary Haze Pollution 2002

Pebrianto, Dony Yusra (2023) Konstruksi Pengaturan Penegakan Hukum Terhadap Pencemaran Asap Lintas Batas Pasca ASEAN Agreement on Transboundary Haze Pollution 2002. S3 thesis, Universitas Jambi.

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Abstract

The environmental issue has become a hot topic, particularly regarding transboundary haze pollution. The legal challenge that arises concerns the enforcement of laws related to actions causing transboundary haze pollution following the ratification of the ASEAN Agreement on Transboundary Haze Pollution (AATHP). The current legal instruments lack legal certainty since the AATHP does not address the mechanisms and legal jurisdiction related to the enforcement of laws against transboundary haze pollution. Consequently, legal uncertainty arises concerning which laws have jurisdiction over their enforcement. This issue is examined from a juridical-normative approach. This research concludes that regulations on transboundary haze pollution in the ASEAN region were proposed long before the AATHP was agreed upon as a response by ASEAN countries to the impact of forest and land fires in Indonesia, which resulted in transboundary haze pollution. However, the AATHP lacks legal certainty, considering the theory of legal certainty, which is part of the legal purpose theory proposed by Gustav Radbruch, due to several factors preventing it from functioning as a legal enforcement instrument. Additionally, the national legal framework with an extraterritorial jurisdiction established by Singapore does not ensure legal certainty as this provision contradicts ASEAN principles. To bridge the gap towards achieving legal certainty, especially concerning general legal objectives, as suggested by Satjipto Rahardjo, and to avoid tension among these objectives, the theory of legal development proposed by Mochtar Kusumaatmadja is considered a solution to build a legal system aligned with the societal values. Therefore, the legal jurisdiction in the enforcement of transboundary haze pollution laws should ideally return to national laws. Specifically in Indonesia, regulations should be developed by prioritizing the philosophical goals outlined in the preamble of the 1945 Constitution, thereby ensuring legal certainty and the achievement of legal objectives by applying administrative sanctions as a premium remedy, as suggested by Philipus M. Hadjon. A crucial recommendation from this research is the need for a concept for future international law implementation in Indonesia by adopting the concept of monism with the primacy of national law. Keywords: Pollution, Transboundary Haze, ASEAN Agreement on Transboundary Haze Pollution.

Type:	Thesis (S3)
Subjects:	K Law > K Law (General)
Divisions:	Fakultas Hukum > Ilmu Hukum
Depositing User:	Pebrianto
Date Deposited:	04 Dec 2023 05:02
Last Modified:	04 Dec 2023 05:02
URI:	https://repository.unja.ac.id/id/eprint/58202

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