Legislating International Legal Ambiguity in A Contentious Democracy: Indonesia's Interpretation of Global Maritime Cabotage Princples

• Author: Elfrida Ratnawati & Siti Nurbaiti
• Position: Universitas Trisakti Faculty of Law, Indonesia
• Pages: 75-94

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

We would like to thank Pranoto Iskandar and Abdurrachman Satrio for their valuable

assistances throughout both the research and writing process that enabled us to com-

plete this article.

LEGISLATING INTERNATIONAL LEGAL

AMBIGUITY IN A CONTENTIOUS

DEMOCRACY

IndonesIa’s InterpretatIon of Global MarItIMe

CabotaGe prInCIple

Elfrida Ratnawati & Siti Nurbaiti

Universitas Trisakti Faculty of Law, Indonesia

Email: elfrida.r@trisakti.ac.id & siti.n@trisakti.ac.id

In this paper, we show that the ambiguousness of international legal principle is

an open vessel for the receiving domestic politics to appropriate, so much so that

it becomes self-contradictory. To a great extent, this international legal ambigu-

ity has rendered international legal principle to be meaningless. To substantiate

it, we discuss how global maritime cabotage principle is being translated in In-

donesia. e Indonesian case suggests that both legal and extra-legal consider-

ations have equally informed the ever-shiing meaning of cabotage principle.

Clearly, this signies that the process of domestic legislation plays the determin-

ing role in dening the semantic content of an international legal principle. In

other words, it is important to take the domestic process of legislation seriously.

As such, this paper presents a contribution to the discourse of the rule of law

building in developing legal systems, such as Indonesia.

Keywords: law and development, international legal theory, comparative law, legisla-

tion theory, legal transplant.

X Indonesian Journal of International & Comparative Law 75-94 (January 2023)

76

Ratnawati & Nurbaiti

INTRODUCTION

It is stated that “the law is a profession of word”.1 In spite of the fact that

it seems trite, this particular proposition implies that legal ambiguity,

i.e., the capacity of the law to be understood in more ways than one, is

something inevitable. us, grappling with legal ambiguity as a result

of indeterminate language is a perennial question in jurisprudence. For

that matter, it is hardly a surprise that “[s]ignicant portions of the

institutional legal system, especially courts at the appellate level and

supreme courts, are for the most part concerned not with disentangling

the facts of cases but with the indeterminacies of the law”.2

Supposedly, legal ambiguity has something to do with the concept

of modern law itself as primarily relying on the use of words. From

that perspective, an understanding that only textual or plain meaning

matters becomes conceivable.3 In short, it is through words that modern

human societies constitute, order and regulate their legal aairs.4

What is more, legal ambiguity is not conned to the domestic

context. It may also be present at the supranational level. For instance,

a noted commentator has explored “ways in which the institution(s)

is founded upon a long list of antinomies and ambiguities that allow

various participants to take things how they will”.5 It would not be a

stretch to say: “international law is replete with deliberately created

ambiguities. Most treaty provisions are ambiguous because the parties

were able to agree only on studied ambiguity instead of concrete

1. D M, T L   L vii (1963).

2. Ralf Poscher, Ambiguity and Vagueness In Legal Interpretation, in T

O H  L  L 128, 128 (Lawrence M. Solan &

Peter M. Tiersma eds., 2012).

3. V C , S  W: L  A 

 P   B (2001).

4. L C, T G,  S   P: W, C

  M   M W (2021); R T

F, D C: H  L  F M H (2021).

5. Kenneth Anderson, Ambiguity in International Law and Diplomacy, and the

Ambiguous Meaning of Multilateralism at the UN [Scholarly Commentary],

O J (2008), http://opiniojuris.org/2008/08/23/ambiguity-in-

international-law-and-diplomacy-and-the-ambiguous-meaning-of-

multilateralism-at-the-un/.