Brawijaya Law Journal : Journal of Legal Studies https://lawjournal.ub.ac.id/index.php/law <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 : Journal of Legal Studies (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> en-US <p><img style="border-width: 0;" src="https://i.creativecommons.org/l/by-nc/4.0/88x31.png" alt="Creative Commons License" /></p> <p>This journal embed or display simple machine-readable CC licensing information. This journal allow reuse and remixing of content in accordance with a Creative Commons license, <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a> (CC BY NC)</p> <p>Authors who publish with this journal agree to the following terms:</p> <ol> <li>Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative <a href="http://creativecommons.org/licenses/by/4.0/" target="_blank" rel="noopener">Commons Attribution 4.0 International License (CC BY NC)</a> that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.</li> <li>Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.</li> <li>Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See <a href="http://opcit.eprints.org/oacitation-biblio.html" target="_new">The Effect of Open Access</a>).</li> </ol> <p> </p> lawjournal@ub.ac.id (Brawijaya Law Journal : Journal of Legal Studies) fransiska.s@ub.ac.id (Fransiska Ayulistya Susanto) Sat, 30 Apr 2022 15:41:31 +0000 OJS 3.2.1.4 http://blogs.law.harvard.edu/tech/rss 60 Sentencing over Objection to Mobilization as Military Reserve: An analysis of National and International Laws https://lawjournal.ub.ac.id/index.php/law/article/view/887 <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. 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. Conscription is compulsory for those who meet the qualifications and selection criteria to participate as a military reserve but instead refuse on the grounds of conscientious objection, without having clear evidence for their refusal. This is meant to ensure that citizens of bad faith will not have a chance to make use of conscientious objection as an excuse to refuse to serve the nation</p> Abdul Madjid Copyright (c) 2022 Abdul Madjid http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/887 Sat, 30 Apr 2022 00:00:00 +0000 Civil-Military Cooperation (CIMIC) in Humanitarian Assistance and Disaster Relief (HADR): The Legal Frameworks https://lawjournal.ub.ac.id/index.php/law/article/view/854 <p><em>Civil-military cooperation (CIMIC) is one of the most crucial factors for the successful humanitarian assistance and disaster relief operation (HADR). It is important to foster the relationship between these two sectors in order to </em><em>pursue the effective outcomes of the operation. In pursuance of that, the developed mechanism for civilian-military coordination including clear CIMIC frameworks are needed. This paper aims to explore 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 the study will be on the operation at the operational phase. The CIMIC fundamentals and principles for foreign military sector will be scrutinized. The analysis would lead to the identification of the essential subjects for policy makers to consider and issue the proper national framework for CIMIC in HADR.</em></p> Panita Chaisorn Copyright (c) 2022 Panita Chaisorn http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/854 Wed, 18 May 2022 00:00:00 +0000 Un Security Council Resolutions in the National Legal System: A Comparative Analysis https://lawjournal.ub.ac.id/index.php/law/article/view/878 <p>United Nations Security Council resolutions are decisions adopted by a vote of the five permanent members and ten non-permanent members of the United Nations Security Council. The resolution is part of the "primary responsibility for the maintenance of international peace and security." Therefore, a state is encouraged to apply the resolutions at the national level. In Indonesia, there have been many encouragements from various parties for the Indonesian government to make a legal instrument to enforce the UN Security Council's resolutions. Legal instruments function to bridge and reduce the gap in the rule of law in the enforcement of national UN Security Council resolutions. However, the government of Indonesia faces several challenges in implementing legal instruments in the UN Security Council resolutions. This article maintains that it is crucial to study the accommodative policies in the national enforcement of UN Security Council resolutions by considering how it is applied in Singapore. The State of Singapore enforces special laws governing UN Security Council resolutions (known as the United Nations Act Chapter 339-UN Act). UN Act 339 is the legal umbrella for implementing UN Security Council resolutions for the Singapore government. The UN Act is also an attempt by the Singapore government to carry out its international obligations to the United Nations.</p> Rika Kurniaty, Setyo Widagdo, Patricia Audrey Ruslijanto Copyright (c) 2022 Rika Kurniaty, Setyo Widagdo, Patricia Audrey Ruslijanto http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/878 Wed, 18 May 2022 00:00:00 +0000 The Passport to Regulate Foreign Jurisdiction: The Personal Data Protection Bill, 2019 on its Extraterritorial Application https://lawjournal.ub.ac.id/index.php/law/article/view/523 <p>The Indian Personal Data Protection Bill, 2019 was formulated from the Recommendations of the Justice Srikrishna Report. This Bill was the first portkey for India's exclusive data protection regime. The need for protecting the personal data of every Indian becomes essential, as India quite lacks awareness of the importance of every personal, sensitive and critical data. In the absence of personal awareness, a strong framework of data protection law becomes the only safe house to protect every individual's best interests.</p> <p>The EU's GDPR serves as a famous yardstick for global data protection regulation. This is largely due to the architecture on which GDPR was built. Formulated with the sole intent to protect every EU's individual's best interests, the GDPR imposes a great onus of compliance on foreign entities that process their personal data. This resolute extraterritorial nature that GDPR thatches on itself, has commanded several jurisdictions and global entities to comply with it. There are worldwide new data protection regimes being formulated, based on the GDPR's model</p> <p>This places a burden on the Joint Parliamentary Committee that is reviewing India's PDP Bill to upgrade its stance to be tenacious, more obstinate and laid on a strong extraterritorial foundation. This requirement comes with a plethora of challenges in international law, as questions on cross-border jurisdictions may arise. This paper will compare PDP Bill with the GDPR and Brasil's LGPD and analyse the key challenges emerging from the extraterritorial scope of these legislations through the lens of international law. Due academic research is also applied in this study. The paper will strive to identify the possible and plausible solutions to these extraterritorial jurisdictional issues and highlight where India's PDP Bill could improve in terms of its fundamental construction on its extraterritorial aspect.</p> <p><strong><span style="text-decoration: underline;">Keywords:</span></strong> Data Protection, PDP Bill, Extraterritorial Application, GDPR, LGPD.</p> Vasishtan P Copyright (c) 2022 Vasishtan P http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/523 Wed, 18 May 2022 00:00:00 +0000 Commencing Deep Seabed Mining: A Review on Law No. 3 of 2020 on Mineral and Coal Mining https://lawjournal.ub.ac.id/index.php/law/article/view/804 <p>In 2020, the Government of Indonesia enacted Law No. 3 of 2020 on Mineral and Coal Mining which amends Law No. 4 of 2009 on Mineral and Coal Mining. Under this amendment, Law No. 3 of 2020 on Mineral and Coal Mining broadens the definition of Mining Law Territories, as stipulated under Article 1 number 28a. The provision covers the mining law territories to Indonesia archipelago, seabed area, and continental shelf. The term “seabed area” on the Law No. 3 of 2020 on Mineral and Coal Mining brings this study to explore its legal consequences, particularly to determine whether the law is sufficient to begin deep seabed mining. Through normative and descriptive approach, this study found that despite broader definition in the mining law territories, the Law No. 3 of 2020 on Mineral and Coal Mining is insufficient to initiate deep seabed mining. It is based on the findings that the matters of seabed mining require a detailed governance, especially on rights and duties of every party involved in the seabed mining. Therefore, this paper recommends that the activity be regulated by a distinctive law that specifically addresses seabed mining.</p> Evan Tobias Copyright (c) 2022 Evan Tobias http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/804 Sat, 30 Apr 2022 00:00:00 +0000 Malaysia and The Rome Statute of The International Criminal Court https://lawjournal.ub.ac.id/index.php/law/article/view/880 The establishment of the International Criminal Court (ICC) through its founding treaty, the Rome Statute has received both support and opposition from many countries. Despite working towards 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 paper analyses the position of immunity of 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 paper argues that the Yang di-Pertuan Agong (YDPA) 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 the ICC jurisdiction since complementary principle under the Rome Statute cannot be implemented. This paper concludes that as long as these contradictions have not been reconciled, it is not timely for Malaysia to be part of the ICC Membership. Fareed Mohd Hassan, Mohd Hazmi Bin Mohd Rusli, Amalina Ahmad Tajudin Copyright (c) 2022 Mohd Hazmi Bin Mohd Rusli, Fareed Mohd Hassan http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/880 Wed, 18 May 2022 00:00:00 +0000 Authoritarianism and Constitutional Politics in Post-Authoritarian Indonesian Society: Reemergence or Legacy? https://lawjournal.ub.ac.id/index.php/law/article/view/853 <p><span lang="EN-AU">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 serious 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 judgements concerning the anti-subversion law in which anti-Pancasila activities were defined so as </span><span lang="EN-US">to </span><span lang="EN-AU">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 has been restricted, thus subjecting Indonesia's political freedom to risks.</span></p> Yuzuru Shimada Copyright (c) 2022 Yuzuru Shimada http://creativecommons.org/licenses/by-nc/4.0 https://lawjournal.ub.ac.id/index.php/law/article/view/853 Wed, 18 May 2022 00:00:00 +0000