Ratification of the Cape Town Convention 2001
Indonesia ratified the Cape Town Convention 2001 through the Presidential Decree Number 8/2007 based on Indonesian Treaty Law No 24/2000, pursuant to Article 47 of the Cape Town Convention 2001.
Even though Indonesia was not a negotiating state at the diplomatic conference of the Cape Town Convention 2001 which was held by UNIDROIT and ICAO, Indonesia followed the development of the negotiation which occurred in Cape Town and acknowledged that the purpose of this Convention is to form a set of international law applicable in order to procure an aircraft that can promote the development of international carriage by air. As such, Indonesia felt the need to be bound by this Convention based on this consideration.
In ratifying the Cape Town Convention 2001, Indonesia based its ratification on several laws which are Art. 4 and Art. 11 of Constitutional Law 1945, Aviation Law Number 15/1992 as replaced by Aviation Law Number 1/2009, Indonesian Treaty Law 24/2000, and the Formation of Legislation Law No. 12/2011.
Indonesia submitted its declarations according to Art. 39, 40, and 60 of the Cape Town Convention 2001, which provide that every Contracting State has the option to opt in or opt out under the Convention, by making mandatory declaration and other declarations.
Indonesia declared that it was bound by the Cape Town Convention 2001 and adopted the opt-in provision under Art. 39 (1)(a) which states that Indonesia submitted declaration that the following categories of non-consensual right or interest have priority under its laws over an interest in an aircraft object equivalent to that of the holder of a registered international interest and shall have priority over a registered international interest, whether in or outside insolvency proceedings:
- (a) Liens in favour of airline employees for unpaid wages arising after the time of a declared default under a contract to finance or lease an aircraft object;
- (b) Liens or other rights of an authority of Indonesia relating to taxes or other unpaid charges arising from or related to the use of that aircraft object, and arising after the time of a declared default under a contract to finance or lease that aircraft object;
- (c) Liens or other rights in favour of repairers of an aircraft object in their possession to the extent of service or services performed on and value added to that aircraft object.
Indonesia also declared that it adopted and is bound by Art. 39 (1)(b), which states that Indonesia declares that nothing in the Convention shall affect its right or that of any entity thereof, or any intergovernmental organization to which Indonesia is a member, or other private provider of public services in Indonesia, to arrest or detain an aircraft object under its law for payment of amount owed to the government of Indonesia, any such entity, organization or provider directly relating to the service or services provided by it in respect of that or another aircraft object.
Indonesia adopted and is bound by Art. 40 as well. It stated that Indonesia declares the following categories of non-consensual right or interest shall be regis- trabled under the Convention as regards any category of aircraft object as if the right or interest were an international interest and shall be regulated accordingly:
- (a) Liens in favour of airline employee for unpaid wages arising prior to the time of declared default under a contract to finance or lease an aircraft object;
- (b) Liens or other right of an authority of Indonesia relating to taxes or other unpaid charges arising from or related to the use of an aircraft object, and arising prior to the time of a declared default under a contract to finance or lease that aircraft object; and
- (c) Rights of a person obtaining a court order permitting attachment of an aircraft object in partial or full satisfaction of a legal judgment.
Apart from Art. 39 and 40 which Indonesia has adopted and is bound by, Indonesia also made a mandatory declaration under Art. 53 and 54. Regarding Art. 53 declaration, Indonesia stated that all courts with the competent jurisidction under the law of Indonesia are the relevant courts for the purpose of Art. 1 and Chapter 12 of the Convention. Under Art. 54 Indonesia declared that any and all remedies available to the creditor under the Convention which are not express under the relevant provision thereof to require application to the court may be exercise without a court action and without a leave of the court.
Additionally, Indonesia also made a declaration under the Aircraft Protocol in which some of the article are adopted by and binding on Indonesia, such as Art. XXX (1) relating to Art. VIII concerning choice of law, Art. XXI concerning insolvency aid, Art. XIII concerning the authority to request the removal of the registration and export, Art. XXX (2) relating to Art. X concerning changes in provisions concerning recovery before the final decision, and Art. XXX (3) relating to Art. XI concerning the recovery in the insolvency proceeding, which imposes alternative ‘A’.
-  Consideration of the Presidential Decree No. 8/2007.
-  Goode, Roy, Official Commentary on The Convention on International Interest in MobileEquipment and the Protocol thereto on Matters specific to Aircraft Equipment, UNIDROIT, p.29.
-  Annex of the Presidential Decree No. 8/2007.
-  Article 39 (1) (b) “that nothing in this Convention shall affect the right of a State or State entity,intergovernmental organization or other private provider of public services to arrest or detain anobject under the laws of that State for payment of amounts owed to such entity, organization orprovider directly relating to those services in respect of that object or another object”.
-  Annex of the Presidential Decree No. 8/2007.
-  Article 40 “A Contracting State may at any time in a declaration deposited with the Depositaryof the Protocol list the categories of non-consensual right or interest which shall be registrableunder this Convention as regards any category of object as if the right or interest were an international interest and shall be regulated accordingly. Such a declaration may be modified from timeto time.”
-  Article 53 “A Contracting State may, at the time of ratification, acceptance, approval of, oraccession to the Protocol, declare the relevant “court” or “courts” for the purposes of Article 1and Chapter XII of this Convention.” This declaration give an authority to Contracting States tosubmit declaration regarding jurisdiction of the court based on Convention. But this not includeprivat court or administrative court. Roy, Official Commentary P.159.
-  Article 54 “A Contracting State shall, at the time of ratification, acceptance, approval of, oraccession to the Protocol, declare whether or not any remedy available to the creditor under anyprovision of this Convention which is not there expressed to require application to the court maybe exercised only with leave of the court”.
-  Annex of Presidential Decree No.8/2007.
-  Kamran Radjab Lossen, Yurisdiksi Negara atas Pendaftaran Nasionalitas Pesawat Udara LeasingTransnasional dalam mendukung Industri Penerbangan Indonesia, Dissertation, UniversitasPadjadjaran, Bandung, 2008, p. 262-267.