https://lawjournal.ub.ac.id/index.php/law/issue/feed Brawijaya Law Journal 2022-05-18T07:25:02+00:00 Brawijaya Law Journal : Journal of Legal Studies lawjournal@ub.ac.id Open Journal Systems <p><strong>e-ISSN:<a href="http://issn.pdii.lipi.go.id/issn.cgi?daftar&amp;1457140161&amp;1&amp;&amp;">2503-0841</a> | p-ISSN:<a href="http://issn.pdii.lipi.go.id/issn.cgi?daftar&amp;1457140161&amp;1&amp;&amp;">2356-4512</a></strong></p> <p><strong>Brawijaya Law Journal (BLJ)</strong> is an international journal established by Law Faculty of Brawijaya University. It has<strong> 2 issues per year.</strong> BLJ is an <strong>open access, double peer-reviewed e-journal</strong> which aims to offer an international scientific platform for national as well as cross-border legal research in goverment regulation. 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 recent issues of law. The goal of Brawijaya Law Journal is to bring the highest quality research to the widest possible audience.</p> <p><strong>The journal sets up specific topic to be covered in each issue </strong>which can be analyzed from many perspective of laws as mentioned. However, it does not limit itself on the discussions of Indonesian Law.</p> <p>BLJ accepted submission from all over the world. All submitted articles shall never been published elsewhere, original and not under consideration for other publication (For checking Plagiarism, BLJ Editorial Board will screen plagiarism with using <a href="https://www.turnitin.com/" target="_blank" rel="noopener"><strong>Turnitin app</strong></a> Program). If it is found plagiarism indication (above 25%), editorial board will automatically reject the manuscript immediately.</p> <p>BLJ has been indexed in <strong>DOAJ, Google Scholar, ISJD,Crossref, SINTA, and IPI</strong></p> <p>Nationally <strong>Accredited</strong> by the Ministry of Research, Technology, and Higher Education of the Republic of Indonesia (2017-2022)</p> <p>Decree No. <strong>32a/E/KPT/2017 Dated 26th April 2017</strong></p> <p>Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through <em>www.lawjournal.ub.ac.id</em></p> https://lawjournal.ub.ac.id/index.php/law/article/view/887 Sentencing over Objection to Mobilization as Military Reserve: An analysis of National and International Laws 2022-04-14T04:28:13+00:00 Abdul Madjid majid@ub.ac.id <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Abdul Madjid https://lawjournal.ub.ac.id/index.php/law/article/view/854 Civil-Military Cooperation (CIMIC) in Humanitarian Assistance and Disaster Relief (HADR): The Legal Frameworks 2022-02-16T09:59:35+00:00 Panita Chaisorn Panita.ch@up.ac.th <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Panita Chaisorn https://lawjournal.ub.ac.id/index.php/law/article/view/878 Un Security Council Resolutions in the Legal System: Lesson Learned from Singapore 2022-03-03T21:28:25+00:00 Rika Kurniaty rika.kurnia@ub.ac.id Setyo Widagdo widagdo@ub.ac.id Patricia Audrey Ruslijanto patricia@ub.ac.id Herman Suryokumoro herman.suryo@ub.ac.id <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Rika Kurniaty, Setyo Widagdo, Patricia Audrey Ruslijanto https://lawjournal.ub.ac.id/index.php/law/article/view/523 The Passport to Regulate Foreign Jurisdiction: The Personal Data Protection Bill, 2019 on its Extraterritorial Application 2021-09-10T03:15:51+00:00 Vasishtan P vasishtan98@gmail.com <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Vasishtan P https://lawjournal.ub.ac.id/index.php/law/article/view/804 Commencing Deep Seabed Mining: A Review on Law No. 3 of 2020 on Mineral and Coal Mining 2021-11-13T19:21:13+00:00 Evan Tobias tobiasevan06@gmail.com <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Evan Tobias https://lawjournal.ub.ac.id/index.php/law/article/view/880 Malaysia and the Rome Statute of the International Criminal Court 2022-05-18T07:25:02+00:00 Fareed Mohd Hassan fareed@usim.edu.my Mohd Hazmi Bin Mohd Rusli hazmirusliuow@gmail.com Amalina Ahmad Tajudin fareed@usim.edu.my <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Mohd Hazmi Bin Mohd Rusli, Fareed Mohd Hassan https://lawjournal.ub.ac.id/index.php/law/article/view/853 Authoritarianism and Constitutional Politics in Post-Authoritarian Indonesian Society: Reemergence or Legacy 2022-04-12T03:58:59+00:00 Yuzuru Shimada shimadayuzuru@gsid.nagoya-u.ac.jp <p>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.</p> 2022-04-30T00:00:00+00:00 Copyright (c) 2022 Yuzuru Shimada