Brawijaya Law Journal : Journal of Legal Studies
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
Articles
282 Documents
<![CDATA[In Search of A Just And Equitable Agricultural Land Dispute Settlement In Indonesia ]]>
<![CDATA[Prasanthi, Antarin]]>;
<![CDATA[Daryono, Daryono]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.06
<![CDATA[Agricultural land dispute is commonly resolved by a non-judicial settlement. It however experienced silent conflict and a just and due process of law due to multiple interests involved. Responding to these salient disputes, in 2021 the International Institute for Unification of Private Law (UNIDROIT) established a legal guide to assist developing countries to draft a more sustainable and responsible agricultural land investment contract (ALIC). In Liew to the UN Guiding Principle on Business and Human Rights (2011), the state and enterprises shall exercise adequate oversight to protect the breach of human rights including the customary land rights. The research aims at assessing the agricultural land dispute settlement pursuant to ALIC. It was found that land dispute settlement was dependent upon the maintenance of social control consisting of a dynamic mixture of informal and formal systems. This type of social control enabled creating a balance between disputants, minimizing transactional costs and promoting effective law enforcement. The article elaborated land dispute settlement in two different cases in Indonesia and discusses non-litigation hybrid model of land dispute resolution to promote a better strategy for resolving a land dispute in Indonesia. At the same time, this model may serve as a potential method to provide a better strategy to promote private rulemaking to prevent further disputes as a transition to the application of ALIC.]]>
<![CDATA[A Discovery or a Misery? The Issuance of Anti-Suit Injunction before WTO ]]>
<![CDATA[Besar, Besar]]>;
<![CDATA[Zaki, Muhammad Reza Syariffudin]]>;
<![CDATA[Tanjaya, Steven]]>;
<![CDATA[Koos, Stefan]]>;
<![CDATA[Sabilil, Maria Nauli Salsabilah]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.03
<![CDATA[On 27 January 2023, the Dispute Settlement Body established a panel as requested by the European Union in document WT/DS611/5, pursuant to Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. In fact, the European Union has proposed the formation of a panel according to Article 6 of the Dispute Settlement Understanding (DSU) to respond to the Action against China's lawsuit against high technology in the European Union. China imposed a preservation measure, Anti-Suit Injunction (ASI), that prohibit patent holder for asserting their rights before non-Chinese courts. Such movement is inconsistent to international principles, namely National Treatment (NT) and Most-Favored-Nation (MFN). As the EU claimed China on the subject of patent use on high technology, this discussion will further dissect the WTO Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS). Specifically, Article 3 on National Treatment and Article 4 on Most-Favored-Nation Treatment. The issuance of ASI itself is not listed under Appendix 1 of the DSU that regulates laws that are applicable and recognized as WTO norms under a WTO panel. The WTO panel has never adjudicated any cases relating to the issuance of ASI. This questions whether a WTO norm will be formed before the WTO panel and whether or not China has violated the principles of the WTO and the TRIPS Agreement.]]>
<![CDATA[Cyber Surveillance and Privacy Issues vis-à-vis International Law ]]>
<![CDATA[Walia, Ivneet Kaur]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.05
<![CDATA[The ‘Big Brother is Watching’, is now a trend that is prevalent in the society where the unregulated and unfiltered monitoring of data and interception has led to interference with the privacy rights of the individuals. The background to the concept may not be expressly seen in text but the context of privacy be protected can be seen in legal instruments such as United Nations Declaration on Human Rights, International Covenant on Civil and Political Rights. Though, the legal jurisprudence has also taken sides for placing community interest over individual interest but has often been deficient in providing objective reasonings and justifications. When the privacy and the human rights are interfered with, no one but the State should own the responsibility. The contours of this responsibility have been circumscribed by the existing international legal instruments, but their effectiveness is compromised because of their non-binding characteristics. The paper outlines the importance of regulating mass surveillance, secret surveillance, cyber espionage, cyber attacks etc. and has facilitated a discussion of establishing a pattern of standardized norms in line with human rights obligations catalyzed by cyber diplomacy, which can easily be adopted by States. The paper is Analytical and descriptive in nature. The question will always be debatable when it comes to States exercising their right of surveillance for maintaining law and order and upholding the security of the nation being violative of individual rights. So, whether the States are able to strike a balance between State authority and Fundamental rights of the individuals? Whether the proportionality that is exhibited is justifiable? The uncontrollable parasitic attack on digital communications, without reasonable suspicion is excessive, arbitrary and abusive. There is a need not only for a structured legal framework but also procedural safeguards, oversight mechanisms and redressal forums.]]>
<![CDATA[Protection of People at Sea under International Law: Lesson Learnt from Pushback Action to boat people in Indonesia and Malaysia ]]>
<![CDATA[Puspitawati, Dhiana]]>;
<![CDATA[Susanto, Fransiska Ayulistya]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.02
<![CDATA[People at sea, one of which is the Boat People, has become a problem not only for Europeans but also in Southeast Asia with increasing asylum seekers from Rohingya and migrants from Bangladesh. Southeast Asia is already facing the problem of boat people returning from the Vietnam Asylum. However, an old story becomes a new story that never ends in Southeast Asia when the strategist state to Sanctuary did not participate in the 1951 Geneva Convention. As a result, many people faced pushback and died or lost at sea. This research will discuss the extent to which “protection of persons at sea” and the “search and rescue” can cover the protection of boat people under UNCLOS 1982. This study also analyses how UNCLOS 1982 will work to protect boat people when states protect themselves with the "non-party Geneva Convention 1951". Researchers argued that protection for people at sea, and the of search and rescue cover all dangerous situations faced by all people at sea, even if they are asylum seekers or boat people. They must first be protected from danger at sea, brought ashore, and the territorial state can exercise judgment on them. The "non-state party" has become a shield for Indonesia, and Malaysia to reject boat people and even push boat people back from their territory. However, the two countries are part of the UNCLOS 1982 with the obligation to carry out search, rescue, and protect humans at sea. As a result, they must rescue them and bring them ashore first before they are deported or pushed back from their boats. To investigate the relationship between the protected “protection of persons at sea” and the “search and rescue” and boat people, this paper seeks to assess UNCLOS 1982, customary international law and related cases.]]>
<![CDATA[The United States’ Assault on Multilateralism: The Crisis in WHO, WTO and ICC ]]>
<![CDATA[Yadav, Anita]]>;
<![CDATA[Srivastva, Utkarsh]]>
<![CDATA[ Brawijaya Law Journal Vol. 11 No. 1 (2024): Economic Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2024.011.01.05
<![CDATA[The culmination of the second world war marked the beginning of multilateral cooperation amongst nations of the world to achieve peace, security, economic prosperity, and social advancement. The United States led the international movement towards achieving common goals through multilateral efforts during that era. However, in recent years, the United States’ disenchantment with the principle of multilateral cooperation has become increasingly prominent. The authors have adopted descriptive analytical approach to analyse the unilateral actions taken by the United States against three multilateral organisations, namely, the World Health Organization, the World Trade Organization and the International Criminal Court, which have been at the forefront of the United States’ criticism. The article also critically evaluates the criticism by the United States against these organisations. Further, the authors have also explored the shortcoming in terms of the structure and functioning of these organisations. These organisations have long relied on the cooperation between their members to fulfil their mandates in addressing global challenges. The United States' actions against these organizations have demonstrated a disregard for multilateralism and a preference for the age-old dictum of ‘might is right’. The actions of the United States must also be seen from the lens of challenges it faces today, particularly from China and other emerging economies. Perhaps, the United States’ actions can be seen as an attempt to counter the diminishing giant syndrome. Thus, it is imperative for other nations to respond by reaffirming their commitment to collective action and shared responsibilities.]]>
<![CDATA[Reforming Indonesia’s OJK to Comply with International Standards: Lessons from Australia ]]>
<![CDATA[Agus, Riyanto]]>;
<![CDATA[Santoso, Budi]]>;
<![CDATA[Paraningtyas, Paramitha]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.07
<![CDATA[This research examines the need to reform the supervisory model of the Financial Services Authority (OJK) to align with international supervisory standards, such as the Basel Accords and IOSCO's principles. In Indonesia, the supervisory model used is an integrated one, where OJK is the sole authority responsible for supervising the financial services sector, but it shows weaknesses because the scope of supervision is too broad and therefore unfocused. This study begins with the hypothesis that it is time to move to an alternative model of OJK supervision by learning from supervisory models in other countries. It begins by examining international supervisory standards and their relevance to the context of OJK supervision, exploring specific provisions in the standards that relate to the scope of this paper. The method used is a micro comparison by comparing the supervisory models in Indonesia and Australia. In Australia, the prevailing supervisory model is Twin Peaks, which separates the task of maintaining financial system stability from the task of maintaining market behavior and consumer protection more clearly. Lessons learned from the Australian model in relation to coordination and cooperation, accountability and governance, and outcomes, provide valuable insights and form the basis of contextual recommendations for future OJK reforms. These recommendations aim to ensure that the OJK fully supervises to global standards to address the weaknesses and challenges identified in the integrated model. Accountability and governance, as well as the outcomes achieved, provide valuable insights and inform recommendations for future reform of the OJK.]]>
<![CDATA[The Dilemma Of Operationalizing The Enterprise Under UNCLOS 1982 ]]>
<![CDATA[Agustina Merdekawati]]>;
<![CDATA[Marsudi Triatmodjo]]>;
<![CDATA[I Made Andi Arsana]]>;
<![CDATA[Hasibuan, Irkham Afnan Trisandi]]>
<![CDATA[ Brawijaya Law Journal Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2023.010.02.01
<![CDATA[The Area's deep-seabed mining activities require substantial capital and sophisticated technologies, which become barriers for developing countries. UNCLOS 1982 envisioned that the presence of the Enterprise would solve this problem. However, the Enterprise is yet to be operationalized. The UNCLOS 1982’s Implementing Agreement 1994 postponed the Enterprise’s independent operation until the requirement is fulfilled. However, there have been changes within the international community that might affect the urgency on the Enterprise’s operationalization. This paper explored the dilemma of the Enterprise’s operationalization in ensuring the participation of developing countries and to generate the optimum benefits to all mankind. This research is aimed to contribute to the understanding of contemporary problems in applying the common heritage of mankind principle in the Area. The research found three dilemmas: (a) divided interests of developing countries; (b) optimizing financial benefits redistribution; and (c) the diminishing role attributed to the Enterprise. The research concluded that it is necessary to review the provisions in UNCLOS 1982 and the 1994 Agreement with the spirit of ensuring the participation of developing countries in the Area utilization by adjusting to the current situation of the international community.]]>
<![CDATA[Estate Planning in the Digital Age: RUFADAA as a Lesson to be Learnt to Improve the Syrian Personal Status Law ]]>
<![CDATA[Al Mashhour , Omar Farouk]]>;
<![CDATA[Abd Aziz , Ahmad Shamsul]]>;
<![CDATA[Binti Mohd Noor, Nor Azlina]]>
<![CDATA[ Brawijaya Law Journal Vol. 11 No. 1 (2024): Economic Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2024.011.01.04
<![CDATA[For any country to effectively regulate new technology and keep up with technological advancements, serious legal measures must be taken to ensure that the law is up-to-date. Today's world is increasingly digitalized, with almost all actions taking place in the virtual world. Since then, our data has become digital and can be stored on multiple devices or networks. As a result of this digital transformation, the issue of digital inheritance emerged, which determines what happens to digital assets after a person dies. In Syria, as in many countries worldwide, the years of war and economic issues have driven the attention of legislators away from technological advancement, leaving a variety of legal gaps. Regarding digital inheritance, no specific law or even research has addressed the legal issues arising from digital inheritance and estate planning, adding an additional layer of ambiguity that requires in-depth legal analysis. Thus, this study will examine the viability of the Syrian inheritance law to address the legal issues raised by digital assets after death. The study follows doctrinal legal research, critically analysing legal provisions to improve the current state of the law. The result showed the absence of any clarification on the concept or legal approach to digital assets after death, limiting their provisions to tangible assets while ignoring the role and value of digital assets. Various suggestions have been proposed to fill in this legal gap. These measures must be taken to ensure that the law is up-to-date with the latest developments in technology.]]>
<![CDATA[Motion Sickness: Holding the Acupressure Point of Village-Owned Business Entities on the Wheel of “Good Corporate Governance” ]]>
<![CDATA[Dewi, Amelia Sri Kusuma]]>;
<![CDATA[prasetyo, Ngesti Dwi]]>;
<![CDATA[Rifan, Mohamad]]>;
<![CDATA[Habsari, Hanugrah Titi]]>
<![CDATA[ Brawijaya Law Journal Vol. 11 No. 1 (2024): Economic Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2024.011.01.03
<![CDATA[The transcription of Good Corporate Governance (GCG) scenarios in various state regulations basically attempts to build plots to move various economic resources from an area with low productivity to an area with higher productivity with greater results. However, this condition is different when the Indonesian Government wants Village-Owned Enterprises (BUMDes) which normatively and culturally are not designed for entrepreneurship like BUMD/BUMN. The consequence of this desire is that in its implementation BUMDes tends to be neglected and not bound by the principles of Good Corporate Governance (GCG). Through juridical-normative research methods and 3 (three) legal approaches, this research focuses on "Motion Sickness" towards BUMDes resulting from their placement in the "return on investment" space without Good Corporate Governance (GCG). The results of this research show that when analogous to a vehicle, BUMDes experience Motion Sickness or nausea due to: First, the psychological burden on the apparatus in the Village Government; Second, the Good Corporate Governance (GCG) Design is not in accordance with the BUMDes Design. Hence, the acupressure points that need to be pressed in dealing with BUMDes problems include: legal revitalization in the Village Law, overcoming work culture (such as fraud and insider transactions), sterilization of political elements (separating the interests of village officials from interests of Business Entities), and expansion of the business environment. So that in the future Corporate Governance and Corporate Management in BUMDes can be realized through the commitment of stakeholders such as: Capital Owners/GMS, Board of Supervisory/Commissioners, and Board of Directors.]]>
<![CDATA[Jurisdiction of ICC Over Alleged War Crimes and Crimes Against Humanity Against Palestinians Under the Complementarity Principle ]]>
<![CDATA[Abu Murad, Murad]]>
<![CDATA[ Brawijaya Law Journal Vol. 11 No. 1 (2024): Economic Law ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2024.011.01.06
<![CDATA[This study aims to reveal how the International Criminal Court (ICC) can exercise its jurisdiction over alleged crimes committed by Israelis under the complementarity regime. This paper discusses the ICC's jurisdiction on the alleged war crimes and crimes against humanity committed by the Israelis against the Palestinians under the complementarity principle which is provided in Article 17 of the Rome Statute. Also, to study the principles of international criminal responsibility for individuals, whether they are military superiors or subordinates, who commit acts that constitute a crime against humanity and a war crime under the Rome Statute. The significance of this study appears in shedding light on the jurisdiction of the ICC over Israeli perpetrators, even though Israel is not a party of the Rome Statute. To answer these questions, a qualitative analysis will be applied as its research methodology where both primary and secondary sources will be thoroughly examined. This article concludes that the Israeli national courts did not conduct genuine investigations or prosecutions domestically under the complementarity principle. Thus, the ICC has the authority to exercise its jurisdiction as a court of a last resort over crimes against humanity and war crimes in Palestinian territories as a party to the Rome Statute.]]>
