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Brawijaya Law Journal : Journal of Legal Studies
Published by Universitas Brawijaya
ISSN : 23564512     EISSN : 25030841     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
Arjuna Subject : -
Articles 282 Documents
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The Passport to Regulate Foreign Jurisdiction: The Personal Data Protection Bill, 2019 on its Extraterritorial Application P, Vasishtan
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.04

Abstract

The Indian Personal Data Protection Bill, 2019 (PDP Bill) was formulated from the Recommendations of the Justice Srikrishna Report. This Bill was the first portkey for India’s exclusive data protection regime. Notably, there is an urgent need to establish a strong legal framework for data protection in India as this would be the only safehouse for protecting every individual’s personal data, including sensitive and critical data. The EU’s General Data Protection Regulation (GDPR) serves as a yardstick for global data protection regulation due to its architecture that places a great onus of compliance on foreign entities. This resolute extraterritorial nature that GDPR thatches on itself has inspired several upcoming worldwide data protection regimes. Consequently, the Joint Parliamentary Committee, which is tasked with reviewing India’s PDP Bill, has the responsibility to upgrade its stance to be tenacious and more obstinate, as well as ensure that the Bill has a strong extraterritorial foundation. This requirement comes with a plethora of challenges under international law as questions on cross-border jurisdictions are inevitable. This paper compares the PDP Bill with the GDPR and Brasil’s Lei Geral de Proteção de Dados (LGPD) and analyzes the key challenges emerging from the extraterritorial scope of these legislations through the lens of international law. Its main objective is to identify the possible and plausible solutions to these extraterritorial jurisdictional issues and highlight how the fundamental construction of India’s PDP Bill can be improved to effectively address the extraterritorial concerns.
Fraud in the comperative perspective of civil and criminal law with special focus in Kosovo Hajdari, Egzonis; Hajdari, Albulena; Hajdari, Azem
Brawijaya Law Journal Vol. 8 No. 2 (2021): State Administration Role in Establishing Constitutional Obligation
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2021.008.02.04

Abstract

The object of this study is fraud in the comparative aspect of civil and criminal law based on the relevant legislation and Kosovo legal theory. The results of this study prove that fraud in the Kosovo courts practice is relatively common, and that there are many irregularities in its handling. Irregularities mostly refer to the lack of clarity matter of differences that this harmful phenomenon contains in itself when handled in the civil legal aspect from the treatment given to it in the criminal legal aspect. These uncertainties have influenced that in each concrete case the phenomenon of fraud in Kosovo is first addressed in the criminal aspect and then eventually in the civil aspect. The study highlights the similarities, differences and existing ambiguities of fraud when handled in the civil legal aspect from the treatment given to it in the criminal legal context, as well as it addresses the appropriate ways of clarifying such situation. The contribution of this study is theoretical and practical, bearing in mind the fact that it deals with an almost unaddressed issue in Kosovo and perhaps in many other countries.
Commencing Deep Seabed Mining: A Review on Law No. 3 of 2020 on Mineral and Coal Mining Tobias, Evan
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.05

Abstract

In 2020, the Government of Indonesia enacted Law No. 3 of 2020 on Mineral and Coal Mining, which amended Law No. 4 of 2009 on Mineral and Coal Mining. Under this amendment, Law No. 3 of 2020 on Mineral and Coal Mining expands the definition of mining law territories, as stipulated under Article 1, number 28a. This provision covers the mining law territories of the Indonesian archipelago, seabed area, and continental shelf. This study explores the legal consequences of the term “seabed area” in Law No. 3 of 2020 on Mineral and Coal Mining, to determine whether the law paves the way for deep seabed mining. Through normative and descriptive approaches, this study found that despite the broader definitions of mining territories, Law No. 3 of 2020 on Mineral and Coal Mining is insufficient to initiate deep seabed mining. This is because seabed mining requires a detailed governance structure, especially on the rights and duties of every party involved. Therefore, this paper recommends that the activity be regulated by a distinctive law that specifically addresses seabed mining.
Authoritarianism and Constitutional Politics in Post-Authoritarian Indonesian Society: Reemergence or Legacy Shimada, Yuzuru
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.07

Abstract

This paper discusses how the legacy of authoritarianism in Indonesia has influenced the country’s post-authoritarian constitutional politics. Because of some degree of ideological continuity from the authoritarian period, post-authoritarian Indonesia shows a unique situation of constitutional politics. Specifically, the positioning of Pancasila as an incontestable state ideology exposes the freedom of expression and association to severe risks, even in post-authoritarian Indonesia. In the discussion of post-authoritarian Indonesian society and constitutional politics, I review how the violation of Pancasila has been defined in Indonesia both during and after the authoritarian period. To explore this issue, I examine the court judgments concerning the anti-subversion law in which anti-Pancasila activities were defined to restrict opinions. I then review the social organization law amended in 2017 to argue how the law links Pancasila with the discourse of Asian values. In conclusion, this paper argues that both during and after the authoritarian period, the interpretation of Pancasila was restricted, thus subjecting Indonesia’s political freedom to risk.
Civil-Military Cooperation (CIMIC) in Humanitarian Assistance and Disaster Relief (HADR): The Legal Frameworks Chaisorn, Panita
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.02

Abstract

Civil-military cooperation (CIMIC) is one of the most crucial factors for a successful humanitarian assistance and disaster relief (HADR) operation. It is important to foster the relationship between these two sectors to pursue effective outcomes for the operation. Therefore, a developed mechanism for civilian-military coordination including clear CIMIC frameworks is needed. This paper explores the frameworks/guidelines on CIMIC in HADR issued by three international organizations, namely the United Nations (UN), the North Atlantic Treaty Organization (NATO), and the Association of Southeast Asian Nations (ASEAN). The focus of this study will be on the operation at the operational phase. The CIMIC fundamentals and principles of the foreign military sector will be scrutinized. Consequently, the analysis would help identify the essential subjects for policymakers to consider and issue the proper national framework for CIMIC in HADR.
UN Security Council Resolutions in the Legal System: Lesson Learned from Singapore Kurniaty, Rika; Widagdo, Setyo; Ruslijanto, Patricia Audrey; Suryokumoro, Herman
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.03

Abstract

United Nations (UN) Security Council (UNSC) resolutions (UNSCRs) are adopted by a vote of the five permanent members and ten non-permanent members of the UNSC. Each UNSCR is understood to be part of the “primary responsibility for the maintenance of international peace and security” of the UN. The Indonesian government has been encouraged by various parties to make a legal instrument that would enforce the UNSCRs. Such an instrument would serve to bridge and reduce gaps in the rule of law regarding the enforcement of UNSCRs for nations. However, the government of Indonesia faces several challenges in implementing legal instruments for the UNSCRs. This article maintains that it is crucial to study accommodative policies regarding the national enforcement of UNSCRs by considering the example of Singapore. Singapore has special laws that respond to UNSCRs (The UN Act Chapter 339-UN Act). UN Act 339 is the legal umbrella in Singapore for the government’s implementation of UNSCRs. The UN Act is also an attempt by the Singaporean government to carry out its international obligations to the United Nations.
Malaysia and the Rome Statute of the International Criminal Court Hassan, Fareed Mohd; Mohd Rusli, Mohd Hazmi Bin; Tajudin, Amalina Ahmad
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.06

Abstract

Through its founding treaty, the Rome Statute, the establishment of the International Criminal Court (ICC) has received support and opposition from many countries. Despite working toward universal ratification or accession to the Rome Statute, Signatories and State Parties to the Rome Statute have decided not to ratify and withdraw from being Member States due to, among other reasons, the issue of immunity and criminal responsibility of the Head of State, which are not in line with their respective Constitution, particularly by Malaysia. As such, this study analyzes the position of immunity of the Head of State as well as the criminal responsibility of a military commander under international law, particularly under the Rome Statute and the Malaysian Constitution. Based on doctrinal analysis, this study argues that the Yang di-Pertuan Agong, as the Malaysian Head of State and the Commander-in-Chief of the Malaysian Armed Forces, has immunity before the national court and, thus, will be highly exposed to ICC jurisdiction because the complementary principle under the Rome Statute cannot be implemented. This study concludes that being a part of the ICC Membership is untimely for Malaysia without the reconciliation of these contradictions.
Sentencing over Objection to Mobilization as Military Reserve: An analysis of National and International Laws Madjid, Abdul
Brawijaya Law Journal Vol. 9 No. 1 (2022): International Law and Security
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.01.01

Abstract

Law Number 23 of 2019 concerning National Resource Management for State Defense does not regulate conscientious objection, which refers to the right of a person to refuse to participate in a war or military service on the grounds of religion and morality. Their absence in such services is replaced by other responsibilities such as working in public health services, providing security, and being involved in other social services. Article 77 Paragraph (1) of Law Number 23 of 2019 expressly provides for sentences that should be imposed on those who refuse to serve as a military reserve, where the rule is not in accordance with the principle of conscientious objection which gives a person the right to refuse on the basis of conscience. This research discusses the legal consequences of the enactment of two rules regarding military service and the application of different conscientious objections.  This study applied normative juridical methods and approaches to examine the consistency and relevance of various statutes and government regulations that govern conscientious objection. This study also used conceptual and statutory approaches to explore why conscientious objection is considered a ground for refusal to participate in conscription according to International Human Rights Law. The findings revealed that the conception of defense and compulsory military service in Indonesia does not leave any chance to guarantee the rights of citizens to refuse to participate in military service according to the conscience and belief of every individual (conscientious objection). This is in contrast to the regulatory provisions of international human rights ratified by Indonesia under the International Covenant on Civil and Political Rights. Additionally, there is a need for clear arrangements regarding conscientious objection and the requirements that must be met by citizens who submit these principles for the rejection of military service in Indonesia.
New and Renewable Energy: Ensuring the Hydropower Development Policy Meets the Community and the Environmental Participation Based on the Paris Agreement Rahayu, Devi; Wartiningsih, Wartiningsih; Yogahastama, Riesta
Brawijaya Law Journal Vol. 9 No. 2 (2022): Energy and Environmental Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.02.01

Abstract

Energy demand is rapidly increasing, following population growth and economic trends, including the demand for electrical energy. Indonesia seeks to transition to the use of new and renewable energy to supply its demand for electricity. The national strategic program to construct 65 dams in 2023 is the fundamental foundation for the government’s ability to bring about this massive development. One of the many essential uses of reservoirs is as a source of hydropower energy. However, have been many cases of rejection by local communities that do not consider themselves to have been fairly consulted for or participating in the development process. Another premise of this rejection is founded on environmental issues related to the Paris Agreement. This article focuses on meeting challenges to community and environmental participation based on the Paris Agreement.  New and renewable energy policies incorporate novel regulations pertaining to the government’s authority to work on the new renewable energy projects. Hydropower development projects fall under the government’s efforts to switch to new sources of renewable energy. Insufficient involvement of the local community in development and activities, to the extent that the information and comprehension on where the hydropower dams are expected to be built are exceptionally lacking but are also, due to the impact of the development toward the environment, the main source of refusal from the local community.  Finally in accordance with the Paris Agreement, insufficient attention toward the landscape will likely impair the ability to create future hydropower development projects.
Expanding the Jurisdiction of the International Criminal Court Prihandono, Iman; Yuniarti, Dewi Santoso
Brawijaya Law Journal Vol. 9 No. 2 (2022): Energy and Environmental Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2022.009.02.05

Abstract

Environmental destruction and exploitation of natural resources are some of the main causes of humanitarian conflicts, which are often international in scale. One instance was the crime of genocide conducted by Al-Bashir, which was triggered by exploitation of natural resources (resource war), causing pollution of vital water sources, and ending with conflict in Darfur, Sudan. This case is evidence that environmental destruction can be a driving factor for crimes against humanity. In response to this, the International Criminal Court (ICC) issued a Policy Paper, which sets out considerations to prosecute cases of environmental destruction and illegal exploitation of natural resources, which is referred to by some as ecocide. With growing demand of the international community, not only natural persons, but corporations are urged to be prosecuted before the ICC for ecocide. This research is normative legal research. It is intended to outline the current rise of demand for the ICC to prosecute cases of ecocide, whilst challenging the existing jurisdiction of the ICC based on the Rome Statute. This paper will discuss whether the ICC have jurisdiction to adjudicate ecocide, expanding the Court’s jurisdiction to prosecute corporations, and crimes conducted in and/or by citizens of States that are not members of the Rome Statute, such as Indonesia. This paper concludes with constructive recommendations for businesses to start re-evaluating their business plans to put environment and human rights awareness into priority concern.

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