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Brawijaya Law Journal : Journal of Legal Studies

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Published by Universitas Brawijaya

ISSN : 25030841 EISSN : 23564512 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

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Articles 239 Documents

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MODERN SLAVERY IN INDONESIA: BETWEEN NORMS AND IMPLEMENTATION Hardianti, Savira Dhanika
Brawijaya Law Journal Vol 2, No 1 (S) (2015): Contemporary Issues in South-East Asia Countries
Publisher : Faculty of Law, Universitas Brawijaya

People now in the 21st century are still sold like objects, forced to work for little or no pay and at the complete mercy of their employers. The Global Slavery Index (GSI) 2013 shows that there are estimated 29.8 million people are living in a modern slavery. In Indonesia there are 210,970 people living in slavery. Although Indonesia has some laws regulating about modern slavery that is included in Anti-Trafficking Law. This paper tries to figure the norms and the implementations in modern slavery practice. How the norms are implemented by the government and what are the obstacles to enforce the law.

CORPORATE SOCIAL RESPONSIBILITY IN INTERNATIONAL ECONOMIC LAW PERSPECTIVE Juarsa, Nyoman Indra; Persian, Yanuarda Yudo
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

Multinational Corporation/MNC has a significant role to play in promoting sustainable development and alleviating global poverty. As a subject of International Economic Law, MNC has the rights to take profit from its business activities. In addition, it also has responsibility to protect sustainable environment through CSR program. This paper focuses on what more specific instrument sets CSR in international economic law, and how CSR can be implemented by the MNC. International (public) law has been providing instruments to regulate MNC activities related to CSR, those are: OECD Guidelines, ILO Declaration and UN Global Compact. However, they are only â€œsoft lawsâ€ that still require more specific instrument to be implemented. As a continuation of the general rules of public international CSR Instruments, the World Bank Group through the IFC and MIGA sets standard performances that must be met by every corporation that will get finance (IFC) or guarantee (MIGA). Standard Performances are described further in the environmental, health and safety guidelines that are essential for every company to provide protection to stakeholders related to business activities including workers, communities, and environment. As the method of evaluation and enforcement, IFC and MIGA have institution namely Compliance Advisor Ombudsman serving to receive reports from the public, investigate and provide notification to the company activities that negatively affect the society. Ultimately CSR is not only seen as philanthropy (mandatory) but also as guidelines and a code of conduct to be followed by the corporation in carrying out any business.Â Key words: mandatory norm, obligatory norm, CSR

LEGAL STATUS OF WARSHIP WRECKS FROM WORLD WAR II IN INDONESIAN TERRITORIAL WATERS (INCIDENT OF H.M.A.S. PERTH COMMERCIAL SALVAGING) Meskin, Senada
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

Second World War was one of the most devastating experiences that World as a whole had to endure. The war left so many issues unhandled, one such issue is the theme of this thesis, and that is to analyze legal regime that is governing sunken warships. Status of warship still in service is protected by international law and national law of flag State, stipulating that warships are entitled on sovereign immunity. The question rises whether or not such sovereign immunity status follows warship wreck? Contemporary international law regulates very little considering â€˜sovereign wrecksâ€™, but customary international law, municipal court decisions and State practices are addressing issue quite profoundly, stating that even the warship is no longer in service it is still entitled on sovereign immunity status. HMAS Perth is Australian owned warship whose wreck current location is within Indonesian Territorial Sea. Recent reports show that commercial salvaging has been done, provoking outrage amongst surviving HMAS Perthâ€™s naval personnel and Australian historians. In order to acquire clear stand point on issue of Sovereign Wrecks legal status, especially of HMAS Perthâ€™s wreck, an in-depth analysis of legal material is necessary.Keywords: Territorial Waters, Warship, Warship Wreck, Salvage

RECOGNITION OF THE CUSTOMARY LAND LAW IN THE CONSTITUTION OF INDONESIA AND MALAYSIA Napoh, Datu Bua
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

Recognition of customary land law is very important for indigenous peoples in their daily lives to protect the existence of the preservation of customary law itself, because this is a traditional lands where they carry out their daily routines and develop their traditional habits which categorized as unique and different from other areas. In Indonesia, the customary land law is recognized as long as it really exists and does not contradict the higher principle and state law. We can see it in article 3 UUPA in 1960, and article 18b paragraph 1945 Constitution of the Republic of Indonesia; while in Malaysia, customary land law is also protected in the Constitution of Malaysia Certificate 134, Original Certificate in 1954. Moreover, the recognition of indigenous land has also been described by the "UN Declaration on the Rights of Indigenous Peoples in articles 8, 10, 26, 29, 30, 32", the UN explains how they give great recognition of the law of customary land to provide rights and obligations to society custom to protect the existence and preservation of the traditions that they get from their ancestors.

INDONESIAN SALVAGE LAW WITHIN THE FRAMEWORK OF CONTEMPORARY MARITIME LAW Puspitawati, Dhiana
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

Located in a strategic position, that is between two great oceans and two land masses have made Indonesia a centre of international trade and shipping. In fact, 90% of international trades are carried out through the ocean. It is therefore crucial to assure that the activities in carrying goods across the ocean are incident free. However, if accident happens, assistance from professionals to preserve items of property is desirable. In such, salvage law emerged. This paper discusses comprehensively Indonesian salvage law within the framework of contemporary maritime law. While Indonesian maritime law is mostly based on its national law on the carriage of goods by the sea, in fact, the development of maritime law is highly affected by international practices which are largely based on international conventions and regulations.This research finds that while Indonesian salvage law can be found in Book II Chapter VII article 545-568k Wetboek Van Koophandel or known as Kitab Undang-undang Hukum Dagang (KUHD), which focused narrowly on the value of salved property as the primary measures of success, yet Indonesian salvage law has not been developed in accordance with current international salvage law, which adopted a broader and more balanced approached in both commercial and environmental aspects.Although it is believed that such approached is â€œculturally unrecognizedâ€ in Indonesia, this research argued that since Indonesian waters are part of international waters, all process by waters including salvage should confirm the relevant international practices and regulations. While Indonesia has taken out salvage law from KUHD and regulates it within Act Number 17/2008 on navigation, however, such act only provides one article for salvage stating that salvage will be regulates further by Ministry Regulation. Untill this paper was written no such government regulation produced yet by Indonesia. Since Indonesian waters is the centre of international navigational routes, this paper argued that it is an urgent need for Indonesia to have appropriate salvage law in place, so it can develop dinamically from shipping practice and confirm with international regulations in salvage.Â Keywords: salvage law, maritime law, commercial and environmental.

CONSTITUTIONAL RIGHTS FOR PERSONS WITH DISABILITIES IN INDONESIA: PRESENT AND FUTURE REGULATIONS (A Comparative Perspective between Indonesia and Malaysia) Djangko, Indri Sukmawati
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

Recognition of similar rights between persons with disabilities and common people has become a global issue. The world has been realized this point and initiated some international programs to fight the rights for persons with disabilities. Indonesia has already recognized the disabilities people rights in constitution and other regulation. Contrary to the fact that the awareness of human right fulfillment for person with disabilities is already contained in Indonesian regulations, its realization is not enough to guarantee the welfare and human rights fulfillment for every person with disabilities. Through library research which is used as a method of data collection in this paper, the author compares the fulfillment of human rights for persons with disabilities in Indonesia and Malaysia. In this paper, the author explains constitutional rights that support the human rightsâ€™ existence for persons with disabilities, as well as describes the rights that are mandated in every level of regulation hierarchy that specifically regulating persons with disabilities. In the end, this paper also suggests alternative solution for Indonesia in the future.Â Keywords: disabilities, rights, Indonesian Law, Malaysian Law

THE ANALYSIS OF FOREIGN-VESSEL SINKING AS AN EFFORT BY THE GOVERNMENT OF INDONESIA TO COMBAT IUU FISHING PURSUANT TO INTERNATIONAL LAW Kristiyanto, Kristiyanto -
Brawijaya Law Journal Vol 2, No 2 (2015): Law and Globalization
Publisher : Faculty of Law, Universitas Brawijaya

As an archipelagic state, Indonesia possesses some of the most abundant fishery resources in the world. Geographically, Indonesiaâ€™s strategic location makes it a challenge, and it is a shared responsibility for all citizens to preserve and conserve these resources. The strategic location and rich biological as well as non-biological marine resources automatically attract foreign vessels to carry out IUU fishing activities, particularly in the area of ZEEI (Indonesian Exclusive Economic Zone). The Government of Indonesia has taken various preventive measures to combat IUU fishing practices through bilateral cooperations and various laws. In addition, the Government has also taken some repressive efforts by burning and sinking foreign vessels. In this study, the researcher will analyze the governmental action pursuant to international law and examine the extent to which the sinking of the ship is effective from the perspective of international law. This study will be conducted using normative and juridical approach by reviewing and analyzing various national and international legal instruments related to IUU fishing. We hope that this study will be able to deliver theoretical and practical benefits for students and other researchers who are interested in the issue of IUU fishing practices.Â Keywords : IUU fishing, marine resources, archipelagic state.

ERROR: ESSAY NOT FOUND COMPARING CENSORSHIP IN CHINA AND SOUTH KOREA Nguyen, Quynh-Dan
Brawijaya Law Journal Vol 3, No 1 (2016): Law and Human Rights Issues
Publisher : Faculty of Law, Universitas Brawijaya

Increasing use of Internet all over the world has made worldâ€™s communication borderless. While such condition might benefited most people, however, it invites greater risks of misinformation and opportunities for detrimental self-expression. Stateâ€™s control has various degree of manners in controlling a massive flow of information. This paper will examine the current methods of internet control utilized by the governments of China and Korea, and analyze the extent to which these respective regimes impinge on the human right to freedom of opinion and expression. It begins with an overview on the international standards for freedom of expression, and the limited permissible restrictions upon the right. Furthermore, the examination of the existing legislation and regimes implemented in China and Korea, respectively, and a comparison of features such as legal grounds and practical effectiveness will be undertaken. Finally, it will discuss whether the censorship regimes implemented in China and Korea constitute legitimate restrictions upon, or impermissibly violate, the right to freedom of expression.Â Â

FREEDOM OF SPEECH IN INDONESIAN PRESS: INTERNATIONAL HUMAN RIGHTS PERSPECTIVE Staples, Clara
Brawijaya Law Journal Vol 3, No 1 (2016): Law and Human Rights Issues
Publisher : Faculty of Law, Universitas Brawijaya

This paper will firstly examine the international framework of human rights law and its guidelines for safeguarding the right to freedom of speech in the press. Secondly, it will describe the constitutional and other legal rights protecting freedom of speech in Indonesia and assess their compatibility with the right to freedom of speech under the international human rights law framework. Thirdly it will consider the impact of Indonesiaâ€™s constitutional law and criminal and civil law, including sedition and defamation laws, and finally media ownership, on the interpretation and scope of the right to freedom of speech in the press. Consideration of these laws will be integrated with a discussion of judicial processes. This discussion will be used to determine how and in what circumstances the constitutional right to freedom of speech in the press may be facilitated or enabled, or on the other hand, limited, overridden or curtailed in Indonesia. Conclusions will then be drawn regarding the strengths and weaknesses of Indonesian laws in safeguarding the right to freedom of speech in the press and the democratic implications from an international human rights perspective. This inquiry will be restricted to Indonesian laws in existence during the post-New Order period of 1998 to the present, and to the information and analysis provided by English-language sources.

INDONESIAN LAW REFORM AND THE PROMOTION OF JUSTICE: AN ANALYSIS OF LAW REFORM IN THE POST-SOEHARTO PERIOD McGuire, Hannah
Brawijaya Law Journal Vol 3, No 1 (2016): Law and Human Rights Issues
Publisher : Faculty of Law, Universitas Brawijaya

This paper focused on law reform in Indonesia post-Soeharto period. It analyses whether the promotion of justice has been conducted. It aims to analyse whether the law reform during the reign of B.J. Habibie impeded on the promotion of justice. This paper takes the position that the promotion of justice was absent during Soehartoâs presidency, and through an analysis of five law reforms introduced after his downfall - No. 2 of 1999 on Political Parties, No. 3 of 1999 on General Elections, No. 28 of 1999 on Corruption, Collusion and Nepotism, No. 31 of 1999 on the Eradication of Corruption and No. 39 of 1999 on Human Rights. It is argued that that the laws introduced during the Post-Soeharto era did not see to the complete promotion of justice.

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