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14 Indonesian J. Int'l L. 514 (2016-2017)
The Legal Analysis of "Teori Kedaulatan Nusantara" towards the New Conception of Indonesia Airspace Sovereignty

handle is hein.journals/indjil14 and id is 515 raw text is: 


Indonesian Journal of International Law (2017), Vol. 14 No. 4, pp. 514-542
doi: 10.17304/ijil.voll4.4.705


      THE LEGAL ANALYSIS OF TEORI KEDAULATAN
    NUSANTARA TOWARDS THE NEW CONCEPTION OF
              INDONESIA AIRSPACE SOVEREIGNTY

                            Adi  Kusumaningrum

                 Faculty of Law, Brawijaya University, Indonesia
                 Correspondence: adi.kusumaningrum@gmail.com


                                    Abstract

Art. 1 Chicago Convention of 1944 confirms that every state has a complete and exclusive
sovereignty over the airspace above its territory. This arrangement gives the highest role of
state in controlling air transportation based on state sovereignty principles. The concept of
airspace sovereignty faced challenges with the introduction of international air transportation
liberalization through deregulation provisions. Such liberalization policy is later known as
'open sky policy'. Such open sky policy includes the establishment of single market such as
Single European Sky dan ASEAN Single Aviation Market. The liberalization led to a situation
where sovereignty concept has been regarded from a different perspective. It is widely argued
that the smooth operation of new forms of international cooperation requires a more flexible
perception of sovereignty. This study wants to analyze the concept of Indonesia airspace
sovereignty. A theory of Indonesia airspace sovereignty that ever born is the Teori Kedaulatan
Nusantara by Priyatna Abdurrasyid in the 1970s. Teori Kedaulatan Nusantara based on
two doctrines i.e. the doctrine of necessity and doctrine of right of self-preservation that is the
core of military/security aspect. This paper argues that there is a continuing trend away from
the absolute airspace sovereignty regime towards something less. It is submitted that
preservation theory cannot be sustained in the Indonesia airspace sovereignty doctrine. This
paper asserts that the new paradigm of international air transport drives Indonesia towards
the release ofsome aspects ofIndonesia's airspace sovereignty doctrine.

Keywords: legal analysis, 'teori Kedaulatan Nusantara', new conception, Indonesia airspace,
sovereignty


         Submitted: 14 November 2016 I Revised: 5 March 2016 I Accepted: 14 June 2017

 I. INTRODUCTION

     State  sovereignty   over its territorial airspace is the basic  principle
underlying   the  whole   system  on  international  air law.' Legal   status of
air space  in international  law  develops   very rapidly  based  on  evolving
states' practice.  One  crucial example is   the Roman principle cujus est
solumn,   ejus  est usque  ad  coelum.   The  recognition   of  such  airspace


1 Marek  Zlicz, International Air  Transport Law,   Martinus Nijhoff  Publishers,
Dordecht/Boston/London:   1992, p. 58.


Published by Lembaga  Pengkajian Hukum   Internasional

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