IMPACT OF THE INDONESIA-RUSSIA AGREEMENT ON COOPERATION IN THE FIELD OF SPACECASE LAUNCH FACILITIES AND LEGAL PROTECTION FOR INDONESIAN CITIZENS

IMPACT OF THE INDONESIA-RUSSIA AGREEMENT ON COOPERATION IN THE FIELD OF SPACECASE LAUNCH FACILITIES AND LEGAL PROTECTION FOR INDONESIAN CITIZENS

 

By: Irma Hanafi

 

            Indonesia has a potential that is not possessed by other countries in the development of space technology. This potential is in the form of the equator that stretches over the territory of Indonesia by approximately 13 percent, so that Indonesia is recorded as the country with the longest equator in the world, making Indonesia an ideal place for launching rockets carrying satellites. On April 20-24, 2003, the President of the Republic of Indonesia and the President of Russia signed the Declaration of the Framework for Friendship and Partnership Relations between the Republic of Indonesia and the Russian Federation in the 21st Century (Declaration on the Framework of Friendly and Partnership Relations in the 21st Century) as well as a number of other agreements, including cooperation on space technology.[1]

            In order to establish space cooperation for peaceful purposes, Indonesia and Russia held several negotiations. The negotiations succeeded in reaching an ad-referendum agreement on the text Agreement Between the Government of the Republic of Indonesia and the Government of the Russian Federation on Cooperation in the Field of Exploration and Use of Outer Space for Peaceful Purposes. One of the implementations of the Agreement is that the commercial satellite launch project in Biak

will involve the use of high-tech items, including large-scale rockets. [2]

            Some of the reasons why Biak was chosen as a satellite launch site by the Russian government, apart from being below the equator, are that Biak Island is far from residential centers, and the airspace above it is relatively far from busy commercial flight routes.[3] Biak is an island that is entirely coral so the runway of Frans Kaisiepo Biak Airport is very strong, it is one of the strongest runways in Indonesia which can withstand loads of up to 400 tons. Satellite launches using air launch system, is a satellite launch system via air carried out by aircraft so it requires a strong runway, such as the one Kaisiepo Biak Airport has.[4]

In relation to satellite launching activities, at the 43rd session of the Legal Sub-Committee, the UN Committee on the Peaceful Uses of Outer Space has succeeded in agreeing on several matters that can be an encouragement for the development of international space law, such as the draft resolution of the UN General Assembly as an effort to encourage the application of the concept of the launching state (launching states) contained in Registration Convention and Liability Convention.[5]

 

Responsibility for launch activities is regulated in more detail in Article II. Liability Convention 1972, in implementing the provisions contained in Liability Convention 1972 there are a few exceptions outlined in article VII Liability Convention 1972 which states that:

“The provisions of this Convention shall not apply to damage caused by a space object of a launching State to:

a)      nationals of that launching State

b)      foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launch or recovery area as the result of an invitation by that launching State.”

 

This convention regulates the issue of liability for losses from outer space activities. Parties that can apply for compensation are: non-launching countries whose territory or citizens suffer losses, including legal entities and individuals.[6]

In the Indonesia-Russia cooperation, the State of Indonesia is categorized as a launching country, so the legal impact of the Indonesia-Russia cooperation is in accordance with the provisions of the Liability Convention Article VII section (a), that the provisions of the convention do not apply to losses caused by a space object from the launching country to citizens of the launching country. This can cause problems, namely how to provide legal protection for Indonesian citizens themselves if they suffer losses due to the launch of the Russian satellite. Because until now, Indonesia does not have legal regulations concerning the implementation of space activities, especially legal regulations concerning satellite launches. This situation can result in a legal vacuum if satellite launch activities are carried out in Indonesian territory.

In order to anticipate possible losses that may be experienced by Indonesian citizens from the Russian satellite launch activities in Biak, and also to anticipate legal problems that may arise as a result of the satellite launch activities, the Indonesian state, in this case the government, needs to take legal measures in order to protect its own citizens from the consequences of losses that may be experienced by its citizens.The government must also look at the level of advantages and disadvantages of making Indonesia a launch site for other countries' satellites as a consideration in decision-making, considering that there are still many areas in Indonesia other than Biak that are strategic to be used as satellite launch sites.

Indonesia-Russia cooperation in the form of Agreement Between the Government of the Republic of Indonesia and the Government of the Russian Federation on Cooperation in the Field of Exploration and Use of Outer Space for Peaceful Purposes, which consists of 16 articles and annexes concerning intellectual property and limited business information. The sixteen articles consist of:

a.         Article 1, objectives

b.        Article 2, regarding legal basis

c.         Article 3, concerning the competent bodies and implementing organizations

d.        Article 4,5, regarding the scope and form of cooperation

e.         Article 6,7, regarding separate agreements and funding

f.         Article 8,9, regarding and exchange of information

g.        Article 10, concerning protection of the security of property and technology

h.        Article 11,12, regarding responsibilities and customs

i.          Article 13,14, on export control and assistance for personnel activities

j.          Article 15,16, regarding dispute resolution and closing provisions.

The purpose of the cooperation agreement between the Indonesian government and the Russian government in accordance with the provisions of Article 1 of this agreement is to form a legal basis for organizing mutually beneficial cooperation in certain areas of joint activities related to the exploration and use of outer space and the use of space equipment and technology for peaceful purposes, primarily through: [7]

a)      Scientific research and joint activities in the design, development, production, testing and operation of space equipment.

b)      Exchange of technology, specialized knowledge, equipment and relevant material resources.

c)      Commercial activities and other activities related to the launch of spacecraft.

d)     Making derivative agreements regarding activities as implementation of the agreement.

            The issue of liability is regulated in Article 11 of the Indonesia-Russia agreement. In the issue of liability, the provisions of the Indonesia-Russia agreement state that, the parties based on the principle of reciprocity, are obliged to release any responsibility and claims for compensation against each other and therefore each party will not file any claim against the other party, its authorized bodies and implementing organizations of the other party for damage resulting to persons among its personnel or their property in connection with the participation of such persons and the use of such property in joint activities based on this agreement, by the other party, its authorized bodies and implementing organizations.[8]

Positive impact

Indonesia-Russia cooperation using air launch system is a national agenda and is a joint program of the Indonesian people,[9] which is expected to be a source of income for the Indonesian government and can also generate added economic value through development and operation. air launch system in Biak. [10]

Indonesia-Russia cooperation using air launch system is a business service activity that can be categorized as a high-tech pioneering project, has a fairly high risk factor and requires large capital. With the existence of Indonesia-Russia cooperation activities, in turn, it will free Indonesia from dependence on other countries in the use of satellite launch services.

Indonesia gets a competent partner in the field of space technology, where the technology is strictly monitored for its distribution. Indonesia with this activity gets access to space. And indirectly can affect the improvement of Indonesia's bargaining position among countries in the world that are included in the category space country. [11]

For the Biak regional government, it will gain large profits due to the high investment value of the development of facilities and infrastructure for launching the Biak spacecraft through budget revenues from the tax sector in the form of expert labor taxes and levies.[12] Increasing tax revenue supports increasing regional income for the implementation of development activities in the region, especially Biak.

Negative impact 

It is of concern that Russian spacecraft launch activities use air launch system, which is active at the time of launch, namely the aircraft, there is a possibility that the aircraft will experience a leak in the fuel tank during flight and explode in the air.[13] If the fragments of the aircraft containing the rocket and satellite payload hit Indonesian citizens either physically or materially. The provisions of Article VII section (a) Liability Convention 1972, explains that the provisions Liability Convention 1972 does not apply to nationals of the launching country. Thus international responsibility for losses resulting from space activities. Liability Convention 1972, cannot be applied to Indonesian citizens as the launching country.

Chicago Convention 1944, as an international agreement governing aircraft activities in airspace cannot be enforced even though the Russian satellite launch activity uses aircraft, this is closely related to the provisions in Article 3 section (a) of the 1944 Chicago Convention, which explains that the Chicago Convention applies only to civil aircraft, and does not apply to state aircraft. While the Antonov aircraft used in the launch of the Russian satellite is an aircraft from Russia, the Antonov aircraft is registered in the Russian Federation, therefore the flag carrier of the aircraft is the Russian Federation.[14]

Legal Impact

Another legal impact of the Indonesia-Russia cooperation activities is that there is a legal vacuum because Indonesia is the launching country, in accordance with the provisions of Article VII that the provisions Liability convention 1972 cannot be applied to losses caused by a space object from a launching country to citizens of the launching country. With the absence of national legal regulations on space activities in Indonesia, especially the absence of legal regulations on launching activities in Indonesian territory, there is an impact on the absence of legal protection against losses suffered by Indonesian citizens.

Legal Protection for Indonesian Citizens

The Republic of Indonesia does not yet have national legal regulations governing space activities. Thus, Indonesian citizens who suffer losses due to the launch of spacecraft from Indonesian territory can be subject to the provisions of Indonesian national law.

According to the provisions of Article 1365 of the Civil Code which states that, every unlawful act that causes loss to another person, requires the person whose fault caused the loss, to compensate for the loss. In this perspective, Indonesian citizens who suffer losses due to the launch of a spacecraft can file a lawsuit based on Indonesian civil procedure law and the lawsuit can be submitted through the national court institution.

In order to prevent environmental problems that can harm Indonesian citizens in spacecraft launching activities on Biak Island, both the Indonesian and Russian parties as organizers of the launch activities are required to pay attention to the protection and preservation of environmental functions by conducting an environmental impact analysis as stipulated in environmental laws and regulations, based on Law No. 32 of 2009. Environmental impact analysis can be used as one of the main requirements in obtaining an environmental permit that must be obtained before carrying out spacecraft launching activities in Biak.

For Indonesian citizens, especially the indigenous people of Biak who feel marginalized from their own land due to the extension of Kaisiepo Biak airport to the west for the construction of a space launch facility, resulting in some of the indigenous people of Biak having to be relocated to another place, the relocation must take into account the interests of the indigenous people as the original citizens of Biak who live in the region and are bound and subject to certain customs with a high sense of solidarity among its members. The relocation of the indigenous people of Biak should take into account the provisions contained in Law No. 21 of 2001 concerning Special Autonomy for the Province of Papua, especially the provisions of Article 43 paragraph (1) and Article 43 paragraph (4), so as not to harm the indigenous people themselves as Indonesian citizens who also expect legal protection. Article 43 paragraph (1) states that the Papuan provincial government is obliged to recognize, respect, protect, empower and develop the rights of indigenous peoples by referring to the provisions of applicable legal regulations. Furthermore, Article 43 paragraph (4) states that the provision of customary land and individual land belonging to members of the customary law community for any purpose is carried out through deliberation with the customary law community and the members concerned to reach an agreement regarding the transfer of the required land and the compensation.

In order to provide legal protection for Indonesian citizens in the event of losses due to Russian spacecraft launch activities, the contents of the Indonesia-Russia cooperation agreement allow for separate provisions in accordance with the provisions of Article 6 paragraph (1) that the requirements of the provisions including legal provisions for implementing specific cooperation programs and projects must be made in a separate agreement, in written form. Furthermore, the provisions of Article 6 paragraph (2) of the Indonesia-Russia Agreement state that the parties must, if necessary and taking into account the international obligations of each country, sign a separate agreement in written form.

 

 

REFERENCES

 

Hazairin Pohan, Indonesian Foreign Policy in Central and Eastern Europe, Paper at the Briefing for Candidates for Head of Indonesian Representative Office, Jakarta, 2004.

 

Hazairin Pohan, Indonesian-Russian Strategic Partnership Relations in the 21st Century, Paper at the LIPI P2P Seminar, Jakarta, 2006.

 

Aryo Wisanggeni Genthong, What do Biak people get from launching a rocket? through  http://www.mail-archive.com/cikeas@yahoogroups.com/msg04052.html

 

Report of the Indonesian Delegation to the 43rd Session of the UN Sub-Committee, Vienna, Austria, 29 March, 8 April 2004

 

IBR Supancana, Analysis and Evaluation of Law on International Agreements in the Territorial Field, BPHN, Ministry of Justice and Human Rights of the Republic of Indonesia, 2001.

 

Explanatory Manuscript of the Urgency of Ratification of the Agreement Between the Government of the Republic of Indonesia and the Government of Russia.

 

Ade Maman Suherman, Legal Aspects in the Global Economy, Ghalia Indonesia, Bogor, 2005.

 

Alfred Sitindjak, Development and Operation of Spacecraft Launch Facilities from Indonesian Airspace, Journal of Aerospace Analysis and Information, Vol. 2. No. 2, LAPAN Publisher, Jakarta, 2004.

 

Mr. Kresno Putro, Satellite Launch System Market Segment Analysis by Aircraft, Journal of Aerospace Analysis and Information, Vol. 4. No. 1. LAPAN, Jakarta, 2007.